dismissed L-1A Case: Seismic Data

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm 3000
Washington, DC 20529
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U.S. Citizenship
and Immigration
Services
File:
INRE: Petitioner:
Beneficiary:
C 062006
;' , 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)
ONBEHALF 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 niust be made to that office.
Robert P. Wiemann, ief
Administrative Appeals Office
www.uscis.gov
I""
SRC 05 12950826
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 lOl(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § llOl(a)(15)(L). The petitioner , a Texas corporation , states that it is engaged in the 'acquisit ion,
processing, marketing and distributio of seis~ic qata. The eti iQn,erclaims that it is the parent company of
the 'beneficiary's foreign employer, located in Nigeria. The
petitioner seeks to employ the beneficiary as its managing director for a three-year period.
The director denied the petition concluding that the petitioner ~iq not establish that the U.S. company is a
qualifying organization as required by 8 C.F.R. § 214.2(l)(3)(i)., .Specifically, the director determined that the
petitioner failed to demonstrate that the U.S. company-is currently doingbusiness .
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 .icounsel for the petitioner disputes the director 's
findings and asserts ' that the U.S. company is ' actively doing business in the United States. Counsel.
emphasizes that the business "consists mostly in creating and maintaining -business ties with U.S. customers. ~- ,.., .
and therefore it does not generate large numbers .qf"'invoices, purchase orders or other such documentation .." '
Counsel submits a brief and new evidence in support of the appeal.
'j .
To establish eligibility for the L-1 nonimmigrant visa classification , the petitioner must meet the criteria
outlined in section 101(a)(15)(t) of the Act. Specifically, a-qualifying orgariization 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. ' i
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) 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.
(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 05 129 50826
Page 3
(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 sole issue addressed in the director's decision is whether the petitioner has established that it 'is a
qualifying organization doing business in the United States.
The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(G) defines the term "qualifying organization" as a United States or. , . .
foreign firm, corporation , or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraphs (1)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an
employer in the United States .and in at least one other country directly or 'through a
parent, branch, affiliate or subsidiary forthe duration of the alien 's stay in the United
States as an intracompany transferee; and
(3) Otherwise meets the requirements of section 1o1(a)(15)(L),of the Act. ,
The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(H) defines the term "doing business" as:
Doing business means the regular , systematic ' and continuous provision of goods and/or
.services by a qualifying organization and does not include the mere presence of an agent or
office of the qualifying organization in the United States and abroad.
\
The nonimmigrant petition was filed on April 4, 2005. On the Fonn.I-129 petition, the petitioner described its
business as "acquisition , processing, marketing and distribution of seismic data." The petitioner indicated that
it has four Texas-based employees and $800,000 in gross annual-income. The petitioner submitted a company
overview that primarily outlines the company's activities in Africa. The company overview states that the U.S.
petitioner has a staff of six personnel who "have developed solid working relationships between local
reputable USA companies doing diverse business ventutes with many African countries ."
The director issued arequest for evidence on April 9 , 2005, and instructed the petitioner to submit: (1) the
U.S. compan y's 2004 Form 1120 , U.S. Corporation Income Tax Return; and (2) evidence such as in voices,
bills of sale, or purchase orders to establish that the U.S. company hasbeen doing business for the last year.
In a,response dated July 5 , 2005, the petitioner submitted its 2004 IRS Form 1120S , U.S. Income Tax Return
for an S Corporation , with Schedules K-1. The petitioner's tax return shows that the company had total assets
of $14,742, gross receipts or sales of $101,427, and ordinary business income of $14,642. The tax return
shows no deductions for salaries, rents, taxes and licenses, interest , or advertis ing, and indicates "other
deductions" of $86,785. Many sections of the tax return were not completed.
SRC 05 12950826
Page 4
In response to the director's request for documentary evide?ce related to the U.S. company's business
transactions, the petitioner submitted: (1) a copy of a wire transfer request completed by the u.s. company on
April 26, 2004 ordering the transfer of $12,567;15 to the Nigerian entity, which is' identified as "royalty
payment to Ministry of Petroluem Resources, Joint Venture wf.I"AS NOPEC & TATNET NIG. LTD"; (2).a
copy of a renewal appl ication submitted by the petitioner's president for membership in the American
Association of Petroleum Geologists, along with a company check in the amount of $75, dated September 13,
2004; and (3) a receipt for the company's May 2005 rent payment.
The director denied the petition on July 21, 2005 , concluding that the petitioner had not established that the
U.S. company is a qualifying organization. Specifically, the director stated:
As stated on the original petition[,] the company was established in 1989. However no
evidence was submitted to show that the petitioner was currently doing business. A copy of
the petitioner's 2004 tax return was submitted but does .not show that the petitioner was
actually doing business . No other evidence was submitted to show that the petitioner is
currently doing business,
The petitioner filed the instant appeal on August 15 , "2005. On: appeal,-counsel for the petitioner contends that
theU'S. company is actively doing business and notes that the ~etitioner submitted in response to' the
director's request evidence of a royalty payment "in connection with a joint venture," and "invoices showing:. . ~
oil and gas projects in Nigeria." Counsel further clarifies the nature .of the petitioner's business activities as
follows: •
The U.S. petitioner's business consists mostly in creating and maintaining business ties with
U.S. customers and therefore.it does not generate large numbers of invoices, purchase orders .
or other such documentation. Typical of the petitioner's business activities is its arrangement
for the beneficiary to attend the 2004 Offshore Technology Conference in Houston, 'Texas....
[T]he purpose was to meet "contractors in their own environment ," meet "possible
suppliers/clients ," grow "new business relationships," visit with customer, potential
customers and global decision makers ," provide exposure ' for "company products,
technology, and availability," etc. These activities describe die petitioner's business activities
in the U.S. ~ .
.
" o. - To 0 •
In support of the appeal , the petitioner re-submits .its 2004 federal t~x return, along with the following
documentation: (l) a registration form and information regarding the above-refereni!illedtechnolo
conference, held in May 2004; (2) a company profile for a Nigerian company, called
which Jists the beneficiary and the petitioner's p\:esident as part 0 the
urchase orders for computer and networking equipment , dated in 2005.; (4) the .
petitioner's bank statements for the period April 2004 through December 2004 , with several months showing .
no deposits ; (5) evidence related to 'the formation of a Brit ish Virgin Islands company , established in
September 2004, which is partially owned by the petitioner and the beneficiary's foreign employer ; (6) an
international consultancy agreement between "TGS NOPEC Geophysical Company" and the petitioner dated
March 7,2000 under which the petitioner was to provide consulting services in exchange for monthly
SRC 05 12950826
Page 5
co~missio.n payments; an~ement, dated December 19, 2001 ,between the1'fi~e,ri:an Ministry of
Petro.leum Res~u~ces ~nd _~eophy~ical. Company "in partnership with~herein
IS identified as the beneficiary 's Nigerian employer: . . .
Counsel asserts that the attached purchase orders show "extensive upgrades of computer equipment located in
[the pet itioner's] Houston Office ." Counsel emphasi~es that the U.S . entity is involved in several joint
ventures, and notes that the above-referenced agreements remain in force . Counsel concludes that the
petitioner submitted sufficient evidence to establish that the petitioner is a qualifying organization doing
business in the United States. /
Counsel's assertions are not persuasive. Upon review of the record, the petitioner has not established that the
U.S. company is a qualifying . organization doing business as defined at 8 C.F.R. § 214.2(l)(1)(ii)(H) .
Preliminarily, the AAO notes that the petitioner initially claimed on Form 1-129 to have gross annual income
of $800,000, and subsequently submitted its Form 1120S showing approximately $101,000 in gross receipts
for 2004 . The petitioner has neither explained this significant discrepancy , nor submitted any supporting
evidence to substantiate the credibility of either figure. It is incumbent upon the petitioner to resolve any. .. ~
inconsistencies in the record by independent objective eyidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
• , j " •
the ;truth lies. Matter of Ho, 19 I&N Dec. 582, 591 ~92 (~IA 1988). Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition. , Id.
The director specifically requested documentary evidence in theform of invoices, purchase orders, and bilis
of sale to establish that the petitioner had been doing business in the United States for one year. In response ,
.the 'petitioner submitted evidence that the companj, distributed' Vroyalty payment in 2004, evidence that it
paid rent for one month in 2005, and evidence that the petitioner's president is a member of a professional
association in the United States. The petitioner provided no explanation as to how the submitted evidence
establishes that the company was doing business for the previous year. This minimal evidence, considered
, . . ,
with the petitioner's incomplete 2004 tax return which showed limited activity at best, led the director to the
reasonable conclusion that the U.S. company is not engaged in: the regular , systematic and continuous
provision of goods and/or services in the United States.
The , regulation states that the petitioner shall submit additional evidence as the director, in his or her
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that
clarifies whether eligibility for the benefit sought has been established , as of the time the petition is filed. See
8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C .-F.R. § 103.2(b)(14).
The petit ioner now submits additional evidence on appeal in an attempt to establish that the U.S. company is
doing business. Where, as here, a petitioner has ·been put on notice of a deficiency in the evidence and has
been given an opportunity to respond to that deficiency , the AAO need not accept evidence offered for the
firsttime on appeal. See Matter ofSoriano , 19 I&N Dec. 764 (BIA 1988) ; see also Matter of Obaigbena , 19
SRC 05 12950826
Page 6
I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should
have submitted the documents in response to the director's request for evidence. Id.
Furthermore , the newly submitted evidence does not support a conclusion that the U .S. company is doing
bus'iness as defined in the regulations. ' Counsel asserts that the pe'titi~n~{.is .involved in ongoing "joint
ventures" and submits a single consultancy agreement entered .into by the petitioner in 2000. If this agreement
.is still active, as claimed by counsel , it is reasonable to expect the petitioner to submit documentary evidence
of recent commission payments pursuant to the terms of the .agreement. Going on record without supporting
documentary evidence is not 'sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Sofjici , 22 I&N Dec . 1'58, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&l:'J'Dec. 190 (Reg . Comm. 197~)). The unsupported statements ofcounsel on appeal or in a motion are not
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6
(1984); Matter ofRamirez-Sanchez, 17 I&N Dec . 503 (BIA 1980).
The petitioner's 2004 bank statements , while they .indicate receipt of a few significant wire transfers , are
inadequate 'to establish that the company is actively doing business In the United States. The petitioner has
provided no explanation regarding how the petitioner's bank statements reflect the company's business
activities -for the year, nor has it offered corroborating evidence that the company has received any payments
from any source in exchange for the provision of goods and/qr services . Similarly, the petitioner's attendance
of one three-day conference in 2004 and its claimed purchases-of computer equipment, without further
evidence , donot establish that the company has been and, wl ~l be doing business. Counsel's explanation that
the 'company "does not generate large numbers of invoices , purchase orders or other such documentation," is
simply insufficient to compensate for the paucity -of documentation provided in support -of this petition. At a
minimum, the petitioner should reasonably be able todocument the income figure stated on its Form 1l20S,
as well as provide business correspondence or other documJntation of the company's claimed marketing and
business development activities in the United States. Again; going onrecord without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSofjici,
22 I&N Dec. at 165. The non-existence or other unavailability of required evidence creates a presumption of
ineligibility. 8 C.F .R. § 103.2(b)(2)(i). '.,; ,
The AAO notes that much of the evidence submitted relates to the foreign entity or other Nigerian companies
to which the petitioner appears to be related in some way . However , the petitioner is required to establish that
the U.S. company that will employ the beneficiary is actively 'doing business in the United States. Based on
the 'current record, the AAO cannot conclude that the petitioner is providing goods or services in a regular,
systematic or continuous manner. Accordingly , the appeal will be dismissed ..
Although not addressed by the director, the MO further finds.fhat the record as presently constituted is
insufficient to establish that the beneficiary would be employee}"in .a primarily managerial or executive
capacity in the United States. The record contains no comprehensive descr iption of the beneficiary's proposed
duties in the United States and therefore fails to demonstrate that he would be employed in a qualifying
capacity as managing director. In its supporting letter, the petitioner merely stated that the beneficiary "will
assist the company's President in marke ting seismic data," and "WIll generate new business for the company's
SRC 05 12950826
Page 7
new seismic ce~terin Nigeria." This limited description sug;ests that the beneficiary will be directly involved
in marketing and selling the foreign entity's product and services. An employee who "primarily" performs the
tasks necessary to produce a product or to provide servicesi s not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive dutiesj..see also Matter of Church Scientology
Int' f, 19 I&N Dec. 593 , ~04 (Comm . 1988).
Further, the director specifically requested an organizational chart for the U.S . entity that identifies each
employee by name, job title and educational level. The organizational chart submitted in response showed the
beneficiary as "deputy chairman & general manager ," rep<;>rtingto a vice president, who in turn reports to the
president of the company. The petitioner identified the positions of geophysicist, accounting, marketing and
technical support under the beneficiary's position , but provided no names or job titles for these positions.
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R . § 103.2(b)(l4). Further, although the petitioner stated that it employs four individuals in its
Houston , Texas office, the petitioner's 2004 IRS .Form 1120S show~. that the company paid no salaries or
wages. The persons identified as the company's pres ident and vice president are both members of the limited
liability company , but the petitioner has not established the employment of any other personnel in the United
States. Again, 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 tyuth lies. Matter ofHo, 19 I&N Dec .
at 591-92. .. :,
./
j .
Based on the petitioner's indication that the beneficiary would perform non-qualifying marketing activities in
the iUnited States , the petitioner's failure to document its claimed staffing levels, and the petitioner's inability
to demonstrate that the U.S . company is actually doing business, the!AAO cannot find that the beneficiary
would be employed by the petitioner in a primarily managerial or executive capacity. 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) , aff'd. 345 F .3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F .2'd 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 forthe above stated reasons , with each considered as an
independent and alternative basis for the decision. 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 d ismissed.