dismissed L-1A Case: Software Development

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PUBLTCCO'Y
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 03 244 50224 Office: CALIFORNIA SERVICE CENTER Date: .f\PR 0 5 ..
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)(l5)(L)
ON 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 trade to that office.
::~hief
Administrative Appeals Office
www.uscis.gov
WAC 03 244 50224
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
Administrative Appeals Office (AAO) summarily dismissed a subsequent appeal. The matter is now before
the AAO on a motion to reopen or reconsider. The AAO will grant the petitioner's motion and affirm its
previous decision.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 10I(a)(15)(L) ofthe Immigration and Nationality Act (the Act), 8
U.S.C. § 1l01(a)(15)(L). The petitioner is a California corporation that claims to be engaged in software
development and marketing. It states that it is a branch of Samwoo Telecom Co. Ltd., located in Korea. The
petitioner seeks to employ the beneficiary as the director of its new office in the United States for a three-year
period.
The director denied the petition on January 5, 2004, concluding that the petitioner had failed to submit
evidence that the U.S. company had secured sufficient physical premises to house the new office. The director
noted that the lease agreement submitted in response to the petitioner's request for evidence was for an
apartment intended solely for residential purposes.
The petitioner subsequently filed an appeal on January 30, 2004 and indicated on the Form I-290B, Notice of
Appeal, that no brief and/or evidence were being submitted in support of the appeal. Although former
counsel for the petitioner indicated that the petitioner "now occupies its own office, after use of home office,"
the AAO found no supporting documentary evidence attached to support this claim, and therefore summarily
dismissed the appeal on February 21,2006.
The petitioner timely filed the instant motion on March 22, 2006. On motion, counsel for the petitioner
asserts that prior counsel mistakenly indicated on Form I-290B that no brief or evidence were being submitted
in support of the appeal filed on January 30, 2004. Counsel asserts that former counsel did in fact submit
extensive documentation in support of the appeal, including a commercial lease agreement for the U.S.
company and photographs of its business premises. In support of the motion, the petitioner submits a
declaration from former counsel, and additional documentary evidence pertaining to the petitioner's lease and
ongoing business operations in the United States.
Upon review of the record, the AAO finds that the record does contain a copy of the commercial lease in
question and original color photographs of the office secured by the petitioner. As it is not clear if these
documents were inadvertently overlooked or whether they were incorporated into the record subsequent to the
AAO's previous decision, the AAO will reopen the matter in order to reconsider the issue of whether the
petitioner had secured sufficient physical premises to house its new office in the United States.
To establish eligibility under section 101(a)(15)(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 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.
WAC 03 244 50224
Page 3
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.
(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 regulation at 8 C.F.R. § 214.2(l)(3)(v) also provides 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) 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;
(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:
(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 ofthe foreign entity.
WAC 03 244 50224
Page 4
The sole issue to be addressed in this matter is whether the petitioner has secured sufficient physical premises
to house the new office, as required by 8 C.F.R. § 214.2(l)(3)(v)(C).
The nonimmigrant petition was filed on August 26, 2003. The petitioner indicated on Form 1-129 that its
office is located at
On October 19,2003, the director requested additional evidence, including evidence that sufficient physical
premises to house the office had been secured. The petitioner noted that the evidence should include an
official lease contract dated and signed by both lessor and lessee, and indicate the total square footage of the
premises, including all office, production, manufacturing, and/or warehouse spaces.
In a response dated December 22,2003, former counsel for the petitioner indicated that the company "started
with home office," and "will move to other commercial office area after he [sic) hire more employees and get
the approval of the beneficiary's L-l Visa." The petitioner submitted a lease agreement for the above­
referenced address, dated July 28, 2003, that indicates that the premises are to be used "solely as a private
residence." The lease was between the beneficiary as tenant and Irvine Apartment Communities, L.P. The
petitioner indicated that it intended to hire three employees during the first year of operations, including the
beneficiary, but did not specifically describe the type or amount of space required to operate its business.
The director denied the petition on January 5, 2004, concluding that the petitioner did not establish that it had
secured sufficient physical premises to house the new office. The director observed that the submitted lease
was for an apartment intended solely as a residence, and which had not been zoned for any commercial
purpose. The director determined that the premises were insufficient to operate the intended software and
marketing business and to house the proposed employees.
In an appeal filed on January 30, 2004, former counsel for the petitioner stated on Form 1-290B that the
petitioner "now occupies its own office, after use of home office." As noted above, former counsel for the
petitioner indicated on Form 1-290B that he was not submitting a separate brief or evidence in support of the
appeal, and the AAo. found no supporting evidence attached to Form 1-290B. Consequently, the AAO
summarily dismissed the appeal on February 21, 2006.
Current counsel for the petitioner filed the instant motion to reopen or reconsider on March 22, 2006,
asserting that prior counsel for the petitioner did in fact submit a commercial lease agreement and other
evidence in support of the appeal, notwithstanding his statement on Form 1-290B that no additional evidence
was attached. As noted above, the AAO notes that the lease agreement in question and photographs of the
office have been incorporated into the record of proceeding and will be considered herein.
The agreement submitted is a "license agreement" dated January 15, 2004, and is between the petitioning
company and Premier Office Centers, LLC. The lease was for a six-month term commencing on January 21,
2004, and is for a 160 square foot office with a maximum capacity of three people. On motion, the petitioner
submits evidence that the petitioner has continued to rent and occupy this office since January 21, 2004.
WAC 03 244 50224
Page 5
Upon review, the petitioner has not established that the petitioner had secured sufficient physical premises to
house its new office at the time the petition was filed. The lease agreement submitted on appeal was signed
subsequent to the director's denial of the petition, and nearly five months after the 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. Corom. 1978). Accordingly, the AAO need not and
. will not consider the lease agreement signed subsequent to the denial of the petition, or any other evidence
related to the petitioner's current and ongoing business operations.
At the time of filing, the petitioner had not secured commercial space for the operation of its office and had no
immediate intention of doing so. On appeal, a petitioner may not make material changes to a petition in an
effort to make a deficient petition conform to CIS requirements. See MatterofIzummi, 22 I&N Dec. 169, 176
(Assoc. Corom. 1998). Accordingly, the previous decisions of the director and the AAO will be affirmed.
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, the petitioner has not met this burden.
ORDER: The AAO's prior decision, dated February 21,2006, is affirmed.