dismissed L-1A Case: Software

U.S. Department of Homeland SccuritY 
20 Mass. Ave., N. W., Rrn. A3042 
Wahington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 02 089 5 1386 Office: -%s SERVlCE CENTER Date: 
PETITION: Petition for a Nonimmigrant Work? Pupant to Section 101 (a)(] 5XL) of the Immigration 
and Nationality Act, 8 U.S.C. 5 ~l~l(a)il~)(~) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice in your case. All documents have been returned to 
the office that originalfy decided your case. Any further inquiry must be made to that office. 
obert P. Wiemann, Director 
drninistrative Appeals Office 
SRC 02 089 51386 
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 petittoner filed thls nonimmigrant pehtion scehng to employ the beneficiarq. as a nonirnmlgrant 
intracompany transferee pursuant to 5 lOl(a)(l5)(L) of the Immigration and Nahonality Act (the Act), 8 
U.S.C. 4 1101(a)(15)(L). The petitioner is a limited liability corporation organized in the State of Georgia 
that is operating as a software company. The petitioner claims that it is the subsidiary of the beneficiary's 
foreign  employe^, located in Hungary. The petitioner now seeks to employ the beneficiary as its ch~ef 
executive officer for two years. 
The director determined that the petitioner had not established that a qualifylng relationslup exists between the 
U.S. business entity and the foreign business entity. The petitioner did not show it had obtained sufficient 
premises for the new business. Additionally, the director detemuned that the petitions had not established that 
the beneficiary's duties are primarily managerial or executive iri nature. Finally, the director concluded that the 
petlt~oner did not demonstrate that the foreign business was currently doing business. 
On appeal, the petitioner states that it submits new evidence regarding the ownership of the company, new 
evidence of continuous acti~ities of the foreign entity, new ewdence of physjcal premjw for tk U.S. entity, and 
ev-i-;idence of he execubve and managed position of the beneficiary. 
To establish L-l eligibility unda section 101(a)(15)(L) of the Immigration and Nationality Act {the Act), 8 
U.S.C. 4 1101(a)(15)(Z), the petitioner must demonstrate that the beneficiary, withn three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifylng 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year by a 
quali6ing organization and seeks to enter the United States temporarily in order to continue to render his or her 
services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or 
involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(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 -A -. emplayed or will employ the alien 
are quaI@ing organizations as defined in para-mph (l)(l)(~i)TG) of this sastlon. 
(ii) Evidence that the alien wiIl be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the senices to be performed. 
The regulation at 8 C.F.R. 5 2 t 4.2(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 off~ce 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 empIoyed 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 
SRC 02 089 5 1386 
Page 3 
(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: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizaticmal 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 proceeding is whether a quah@ng relationship exists between the petitioning company 
and the claimed foreign company. 
Bureau reguIations at 8 C.F.R. 5 214.2(l)(ii)(G) define the term "quaIifying organization" as follows: 
Qualzfiing organization means 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 paragraph (l)(l)(ii) of hs section; 
(2) Ls 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, afiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
8 C.F.R. 5 214.2(1)(ii)(Ij states: 
Parent means a firm, corporation, or other legal entity 
which has subsidiaries. 
8 C.F.R. 5 2 14.2(l)(ii)(J) states: 
Branch means an operating division or office of the same 
organization housed in a different location. 
8 C.F.R. $ 214.2(l)(ii)&) states: 
Subsidiary means a firm, corporation, or other legal entity of which a pamt owns, di;ectly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, dim tly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
SRC 02 089 51386 
Page 4 
8 C.F.R, §214.2(l)(ii)(L) states, in pertinent part: 
Afiliate means (1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity. 
The petitioner. located in Atlanta, Georgia, stated in its inltial petition that it 
is a subsidiary of the company - located in Hungary. The petitioner stated that the foreign 
ent~ty was founded in 2000 with co-ownership and co-management control by the beneficiary. Documents 
submitted by the petitioner state three persons and perhaps a fourth person had purchased membership in the 
150,000 huf for membership interest 
paid 150,000 huf for membership interest 
) paid 2,200,000 huf for membership interest (one million of this 
rding to an appendix to the contract that was not submitted.) 
(possible limited partner whose name was removed from the 
with (ES).) 
The petitioner submitted the following documents regarding the ownership of the U.S. entity: 
I. a certificate of organization for the U.S. company as a limited liability company 
under the laws of Georgia effective October 12,200 1 and an Employer Identification 
Number (EIN) notice dated October 29,2001; . 
2. Articles of organization that stated ement was vested in two (2 managers 
but listed three: the beneficiary,' 
3. an LLC agreement list~ng the three mG&nd managers named a ove as tnl agers, and 
indicating that voting would be based on the percentage interest owned by each 
member. 
makers." 
On March 1 1, 2002, the director requested additional evidence of the ownership of - 
hc. AdditionalIy, the director requested evidence of funding or capitalization of the U.S. company. Also the 
director requested evidence that the foreign employer is currently engaged in business operations. 
SRC 02 089 51386 
Page 5 
In response to the request for evidence dated March 28, 2002, the petitioner resubmitted the certificate of 
organization, the first page of the articles of incorporation and the modifications to the foreign partnership 
agreement. The petitioner resubmitted a wire transfer statement dated August 23, 2001 as evidence of funds 
committed by the foreign entity to the U.S. entity. However, this wire transfer was dated more than a month 
before the U.S. entity was incorporated and dld not contain the name of the U.S. entity. The director 
determined that this information was insufficient to establish a qualifying relationship between the U.S. 
company and the foreign entity. 
On appeal, the petitioner states: 
The company ownership structure was modified in order to establish a qualifying relationship . 
between the US and foreign business as follows: The Union Trend LTD become a 100% 
owner of the US business entity on June 4 2002 in order to qualify for US Entity as 
Subsidiary. Please find attached Ownership Transfer Certificates. 
The "Ownersh~p Transfer Certific 
respectively, "member and owner 
all his sharedmembership rnterest of nm for. the sum -' 
of $1000 effective on the date agned." The AAO notes that these "certificates" are dated June 3,2002, whch is 
after the director denied the petition on May 9,2002. 
The petitioner must establish eligibility at the time of fiIing the non~mmigrant visa petition. A visa pet~tion 
may not be approved at a future date after the petrtioner or beneficiary becomes eligble under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The U.S. company and foreign 
company were not owned and controlled by the same entity or group of individuals. Consequently, it must be 
concluded that the petitioner has failed to demonstrate a qualifying relationship with a foreign entity pursuant 
to 8 C.F.R. 5 214.2(l)(l)(ii)(G), at the time of filing the instant petition. For this reason, the petition may not be 
approved. 
Additionally, the petitioner submitted a tax return and current balance statement of the foreign entity as 
evidence that the foreign entity is currently doing business. Doing business means the regular, systematic, and 
continuous provision of goods and/or services. 8 C .F.R. $2 14,2(1)(l)(ii)(H). Based on the documents 
provided the petitioner has not provided sufficient evidence that the foreign. entity-is. currentlydoing business. 
For this additional Teason, the petition may not be approved. 
Another issue in th~s proceeding is whether the petitioner demonstrated the existence of suficient premises 
for the new business. The petitioner submitted a virtual office lease that offered locked mailboxes, 
personalized answering servlce and, for an extra charge, telephone lines, voicernail, Internet, and office and 
conference room space. This Iease docs not allow the lessor to place any slgns that would be visible outside 
of the room the lessor is using. The petitioner's virtual services agreement, which went into effect February 
1, 2002, shows that it chose a level one membership without the services of a telephone, mailbox, lobby or 
phone book listing. The director concluded that the petitioner had not provided evidence that suficient 
premxses for the new business had been secured. 
SRC 02 089 51386 
Page 6 
premises, namely the leased office space at the address 
s the actual place where the company conducts business, 
er did not submit a copy of the lease for the listed place of 
business. Based on the evidence provided, the petitioner has not demonstrated that it has sufficient physical 
premises for the new business. Going on record without supporting documentary ev~dence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Cra9 ofCalifornia, 14 
I&N Dec. 190 (Reg. Comm. 1972). 
Another issue in this proceeding is whether the beneficiary's duties have been and will be primarily 
managerial or executive in nature. 
Section 10 l(a)(44)(A) ofthe Act, 8 U.S.C. 4 1 10 I (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee pnmanly- 
i. manages the o~ganization, or a department, subdivision, fimction; or component of the 
organization; 
li, supmiszs &-id cantsols the work of other supenisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
iii. if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as promotion 
and leave authorization), or if no other employee is directly supervised, functions at a 
senior level with the organizational hierarchy or with respect to the function managed 
and 
iv. exercises discretion over the day-today operations of the activity or function for 
which the employee has authority. A first-line supmsor is not considered to be acting in 
a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section 10 I (a)(44)(B) of the ,4ct, 8 U. S.C. $ 1 I0 1 (a)(44)@), provides: 
The term "executive capacityt' means an assignment within an organization in which the 
employee primarily- 
1. directs the management of the organization or a major component or function of the 
organization; 
ii. establishes the goals and policies of the organization, component, or function; 
iii, exercises wide latitude in discretionary decision-making; and 
SRC 02 089 5 1386 
Page 7 
iv. receives only general supervision or direction fiom higher level executives, the board 
of directors, or stockho1ders of the organization. 
The director requested that the petitioner submit evidence that shows the beneficiary worked abroad for one 
continuous year between the period of January 22,1999 and January 22,2002 in a management position. The 
director also inquired about the current activities of the petitioner. Finally, the director requested copies of 
the petitioner's bank account statements with documentation for the source of all bank deposits made from 
August 2001 through February 2002. 
h response to the request for evidence, the petitioner submitted the foreign company's payroll statements for 
the years 1999, 2000 and 2001. Additionally, the petitioner submitted the most recent translated partnership 
contract of the foreign entity which the petitioner states demonstrates a membership/management position. 
The petitioner stated that the beneficiary's current activities included "holding a[n] executive position in [the 
foreign entity] in Hungary and holding aln] executive position in [U.S. entity] in the United States as well as 
with a11 the activities, duties and responsibilities of the above positions." 
Additionally, the petitioner enclosed copies of the beneficiary's personal bank statements. The petitioner 
stated the source of the monthly deposits is the member's withdrawals of profit sharing from the U.S. entity. 
The director noted that though the petitioner submitted more bank statements for the business and provided 
the beneficiaryTs personal bank account statement, the statements listed the same address for both accounts. 
Additionally, the director stated. _ no documentation -__ was submitted to show the source of deposits to the 
beneficiary's personal account and only the first page showing the transaction summary was submitted. The 
director noted that though the petition& submitted payroll records for 2000 and 2001 neither was in the 
original language and neither identified the employer or the position. 
The director determined that the petitioner had not provided sufficient evidence to .demonstrate that the 
beneficiary's duties are primarily managerial or executive in nature. The director found that the petitioner failed 
to demonstrate that the, _ _ . ._ beneficw .- . supervises and controls the work of other supervisory, professional, or 
managerial employees. 
On appeal, the petitioner simply states "the executive/rnanageriaI position of the beneficiary is demonstrated 
in the Articles of Organization filed with the Secretary of the State of GA." This statement is not sufficient to 
demonstrate that the alien will be employed in a primarily managerial or executive capacity. Simply going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceed~ngs. See Matter ofTreasure Craft ofCa/ifornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
It is noted that the petitioner does not clarify whether the beneficiary is claiming to be engaged in managerial 
duties under section 101(a)(44)(A) of the Act, or executive duties under section 101(a)(44)(B) of the Act. It 
appears that the beneficiary may be claiming to be employed as both a manager and an executive. However, 
a beneficiary may not claim to be employed as a hybrid "executive/manager" and reIy on partial sections of 
the two statutory definitions. A petitioner must establish that a beneficiary meets each of the four criteria set 
forth in the statutory definition for executive and the statutory definition for manager if the petitioner is 
representing that the beneficiary is both an executive and a manager. 
SRC 02 089 5 1386 
Page 8 
Based on the evidence provided, it cannot be found that a relationship existed between the U.S. 
petitioner and the overseas entity at the time the initial petition was filed. The petitioner has not provided 
evidence that the foreign entity is currently doing business. The petitioner has not provided evidence that 
sufficient space for the new business has been secured. AdditionalIy, based on the evidence provided, it 
cannot be found that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. The appeal must therefore be dismissed. 
In visa petition proceedings, the burden of proving eligibiIity for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.