dismissed L-1A Case: Software Development

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
identifyingdatadeletedto
preventclearly ~.lHw:0JT~nted..
invasionof personalprivacy
u.s.Citizenship
and Immigration
Services
File: SRC 05 199 50134 FEB o1 Z007Office: TEXAS SERVICE CENTER Date:
Petitioner:
Beneficiary:
INRE:
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)(l5)(L)
IN BEHALF OF BENEFICIARY:
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 .
.~
Robert P.Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 19950134
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 seeks to employ the beneficiary as its president/chief executive officer to open a new office in
the United States as an L-1A 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 U.S. petitioner, a corporation
organized in the State of Texas, is engaged in software development and claims to be the subsidiary of
Sinapsis Technologies Mexico, S.A. de C.V., located in Cuajimalpa, Mexico. The director denied the petition
concluding that the petitioner had failed to establish that it had secured sufficient physical premises to house
the new office, and that it had failed to show the size of the U.S. investment as required by the regulations
governing the opening of new offices.
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 asserts that the director's
decision was erroneous and that the petitioner submitted ample information to establish eligibility for the
benefit sought. In support of this assertion, counsel submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)( 15)(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 (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.
(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 himlher 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.
SRC 05 19950134
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(v) 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) 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.
The first issue in this matter is whether the petitioner has established the size of the United States investment.
Pursuant to 8 C.F.R. § 214.2(l)(3)(v)(C)(2), the petitioner must establish that the petitioner will be able to
support the beneficiary in a primarily managerial or executive capacity by the end of the first year of
operations by establishing the nature and extent of the foreign entity's role in the financial welfare of the
petitioner, including its ability to remunerate the beneficiary.
The petitioner submitted a letter of support with the petition dated June 28, 2005. Although the letter
provided an overview of the proposed nature of the U.S. entity, it failed to discuss the financial situation of
the petitioner or the extent of the foreign entity's investment therein. Consequently, the director issued a
request for evidence on July 14, 2005. The request specifically asked the petitioner to submit documentation
which demonstrated the funding and/or capitalization of the United States entity. The director advised that
copies of documents including but not limited to wire transfers, bank statements, and evidence of financial
resources committed by the foreign entity were the preferred types of evidence.
In a response dated July 25, 2005, the petitioner responded to the director's request. The response included a
copy of the petitioner's checking account statement for the period from June 1,2005 through June 30, 2005.
The bank statement indicated that during this period, two transactions occurred. The first was a deposit,
SRC 05 19950134
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identified as "Ft Incoming Tran Straight," in the amount of $9,000. The second was a withdrawal, identified
as an "Analysis Fee For The Month of May," in the amount of$14.97. Combined with the beginning balance
of $25.03, the final balance for the petitioner at the end of the statement period was $9010.06.
The director denied the petition, noting that one bank statement, without making reference to the foreign
entity, the nature and scope of the U.S. investment, or the manner in which the foreign entity invested in the
petitioner, was insufficient to satisfy the regulatory requirements. On appeal, counsel for the petitioner asserts
that by submitting a bank statement, it fully complied with the director's request in the request for evidence,
since one of the items listed by the director as acceptable evidence was a checking or savings account
statement. In support of its position, counsel on appeal submits documentation alleging the connection
between the foreign entity and the $9,000 deposit of June 8, 2006.
Upon review, the AAO concurs with the director's findings. Specifically, based on the documentation
submitted, it does not appear that the petitioner would be able to support the petitioner in its start-up phase
and allow it to employ the beneficiary in a qualifying capacity at the end of the first year of operations.
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C)(2) provides that, when a 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 of the size of the United States investment and the fmancial
ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States.
In this matter, the only documentation referring to the fmancial status of the petitioner is the June 2005 bank
statement. This documentation, which shows a balance of only $9010.06, is insufficient to establish that the
petitioner is a fledgling organization that will grow to support a managerial or executive position at the end of the
first year of operations.
The petitioner, through counsel, argues on appeal that by virtue of submitting one of the documents identified by
the director as acceptable evidence, it has sustained its burden. The AAO disagrees. While the petitioner
correctly asserts that bank statements were identified by the director as acceptable forms of financial
documentation, one statement, covering a one-month period and identifying only two transactions, is insufficient
to definitively establish the extent of the United States investment.
In this matter, the regulations governing the evidence necessary to support a new office petition clearly stated
the requirements and established the burden of proof to be met by the petitioner. Despite the general
language used by the director in the request for evidence, the regulation at 8 C.F.R. 214.2(1)(3)(v)(C)(2)
clearly requires the petitioner to submit evidence of the size of the United States investment and the fmancial
ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States.
Clearly, the regulations outlined the requirements for establishing a new office in the United States. The
petitioner, however, continues to claim on appeal that its one bank statement, showing a balance of
approximately $9,000, is sufficient to demonstrate that the U.S. entity is ready to commence doing business
and sufficiently outlines the nature of the foreign entity's investment. This is not the case. The bank
statement makes no reference to the source or origination of the $9,000 deposit. In addition, the AAO notes
that the petition was filed on July 7, 2005, one week after the closing date of the statement. It appears,
therefore, without evidence to the contrary, the sole extent of the petitioner's finances at the time of filing was
limited to its closing balance for the month of June.
SRC 05 19950134
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Although counsel on appeal submits documentation in support of the foreign entity 's connection to the $9 ,000
deposit , this information will not be considered . Counsel notes in the appeal brief that this evidence was not
available at the time of the request for evidence; however, the non-existence or other unavailability of
required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). More importantly, the
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and
now submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec . 533 (BIA 1988). The appeal will
be adjudicated based on the record of proceeding before the director.
The evidence of record is insufficient to establish a significant financial investment by the foreign entity in
the United States petitioner, such that it can commence doing business in the United States as outlined in the
petition. For this reason, the petition may not be approved.
The second issue in this matter is'whether the petitioner has secured sufficient physical premises to house the
new entity, as required by the regulation at 8 C.F.R. 214.2(l)(3)(v)(A). In the request for evidence, the
director requested a copy of a valid commercial lease for the petitioner 's business. In its response dated July
25, 2005, the petitioner submitted an agreement with a company identified as "Regus," in which the petitioner
paid _I a $225 monthly fee for "virtual office" services, including call forwarding. According to the
Term~Conditions attached to the agreement, the petitioner contracted for the right to (1) use _'s
address, (2) have phones answered in the petitioner's name , and (3) have 50 hours of workstation usage a
month . The director denied the petition , noting that a "virtual office" does not constitute sufficient physical
premises, and thus does not satisfy the regulatory requirements .
On appeal , counsel challenges the director 's finding, noting that the minimum needs of the petitioner 's
business are satisfied by the services provided for in the virtual office agreement. In addition , counsel
challenges the definition of "sufficient physical premises," arguing that since the petitioner's needs are fully
met by the services provided b~ it has satisfied this provision in the regulations.
The AAO disagrees. The regulation at 8 C.F.R. § 214.2(l)(3)(v)(A) requires a petitioner that seeks to open a
new office to submit evidence that it has acquired sufficient physical premises to commence doing business.
Although the petitioner has submitted evidence of its incorporation in the United States, the fact that it does
not have its own offices or commercial space available suggests that the petitioner is "shell company" that
will not conduct business in a re~nd continuous manner. According to the agreement, the petitioner is
contracting merely for the use of_'s address and a specific amount of workspace hours per month. This
factor, coupled with the bank account balance of $9,000, suggests that the U.S. petitioner is not ready to
commence business operations in the United States. As a virtual office is not the equivalent of physical
premises secured by and for the exclusive use of the petitioner, this requirement is not satisfied. For this
additional reason , the petition may not be approved.
Although not explicitly addressed in the decision , the record contains insufficient documentation to persuade
the AAO that the beneficiary would be employed in a managerial or executive capacity as defined at section
SRC 05 19950134
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101(a)(44) of the Act, 8 U.S.C. § 1101(a)(44), or that the petitioner would support such a position within one
year of approval of the petition.
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).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. 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).
The petition will be denied 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.
ORDER: The appeal is dismissed.