dismissed L-1A Case: Stainless Steel Manufacturing

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. ~3042 
Washington, DC 20529 
- 
File: LIN-02-262-53614 Office: NEBRASKA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Puri3ant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(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. 
\ ~obe5 P. Wiemann, ~irectod 
Administrative Appeals Office 
LIN-02-262-53614 
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DISCUSSION: The Director, Nebraska 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 extend the employment of its President and Chief 
Manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of 'the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a limited liability 
company organized in the State of Minnesota that seeks to engage in the business of stainless steel product 
manufacturing and distribution. The petitioner claims that it is the subsidiary of T.M.I. Food Industries and 
Equipment, Ltd., located in Misgav, Israel. 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: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; and (2) the petitioner has 
been doing business throughout the one-year period prior to filing the petition. 
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 beneficiary 
will be employed in a managerial or executive capacity, and the fact that the beneficiary is the petitioner's sole 
employee does not undermine such a finding. Counsel further asserts that the evidence of record clearly 
demonstrates that the petitioner has been doing business over the previous year. In support of these 
assertions, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 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. 3 214.2(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. 
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(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. 
The regulation at 8 C.F.R. $ 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, 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 within the organizational hierarchy or with respect to the 
function managed; and 
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(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor 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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 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 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition filed on August 15, 2002, the petitioner did not provide a direct description of the 
beneficiary's job duties. In an attached support letter, the petitioner discussed its operations over the previous 
year, including the ordering of metal-working machinery and developing relationships with potential 
customers. The petitioner stated that "[the beneficiary] is now interviewing prospective employees and is 
functioning in his multiple role as the Human Resources Director as well." 
On October 18, 2002, the director requested additional evidence. Regarding the beneficiary's employment 
capacity, the director requested: (1) copies of the petitioner's Forms 941, Employer's Quarterly Tax Return, 
for the year prior to filing the petition; (2) copies of the petitioner's State Unemployment Compensation Form 
for the prior year; (3) a more detailed description of the beneficiary's duties that indicates his actual day-to- 
day tasks, with an accounting of the percentage of time he previously dedicated and currently dedicates to 
each task, (4) a detailed organizational chart for the petitioner that illustrates the structure as of August 15, 
2002, including the names of all departments, teams, employees, their titles, and a detailed description of their 
job duties; and (5) evidence of each worker's employment such as pay stubs. 
In a response dated January 7, 2003, in part the petitioner submitted: (1) copies of Forms 941, Employer's 
Quarterly Tax Return, for the second and third quarters of 2002; (2) a prospective organizational chart for the 
petitioner with descriptions of various positions; (3) a letter further describing the beneficiary's duties as 
follows: 
[The beneficiary] spent most of the initial few months developing relationships with 
manufacturers and customers, while continuing to direct [the foreign entity's] operations in 
Israel. 
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As President and Chief of [the petitioner], [the beneficiary] is responsible for the overall 
organization and operation of the new company. He has executive direction over the 
management of the following functions: company formation/legal, sales and marketing, 
operations and production and administration. 
[The beneficiary] has been instrumental in securing initial contracts with suppliers and 
customers, the procurement of tools and equipment and the establishment of income 
projections. Once these have been concluded, he will expand and amend the business 
proposal included in the previously submitted documentation. [The beneficiary] has 
established business objectives for the company. He also planned and developed operational, 
sales, production, personnel, and administrative policies to guide [the petitioner] in its daily 
operations. 
As President, [the beneficiary] has been intimately involved with all initial sales contracts as 
well as major projects. He has established and maintained a client base and sought out new 
areas of investment. These are currently (January 2003) being transferred to David 
Mastbaum, who will serve as the company's Sales Manager. In addition, Mr. Mastbaum will 
call on customers, maintain current account relationships, arrange appointments with 
prospective customers, open new accounts and execute new and current projects. He will 
advise clients with regard to use of optimal materials, delivery times and prices as well as 
negotiate contracts and coordinate established production delivery times. 
[The beneficiary] has also been responsible for the performance of Operations and Production 
at [the petitioner's] facility. He has established production and delivery goals, 
communications processes, and standards for the quality of design and manufacture. He has 
procured all equipment necessary for the manufacture and design of industry-specific 
equipment. As business expands, he will be instrumental in the initial hiring of the 
production staff to include a shop manager, welders, a welder's assistant, and a machine 
operator. 
He also directs the Administrative responsibilities of the company. The central office staff 
currently consists of an Accountant, who is contracted to audit the company records and 
handle tax issues with additional employees to be hired, as business requires. [The 
beneficiary] is the primary person responsible for the management of finances, handling of 
accounts payable and accounts receivable, establishing personnel practices and maintaining 
personnel records and inventory control. . . . [The beneficiary] thus far has directed payment, 
acceptance or pricing arrangements and bill collecting. 
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[The petitioner] has retained the services of a Corporate Counsel, who has advised the 
President in the initial legal establishment of the company, assisted the company in its further 
legal needs as well as its plans for future expansion. 
Current Percentage breakdown of duties: 
20% Duties relating to President of [the foreign entity] 
25% Establishing financial and production goals; coordinates production and delivery times; 
oversees accounts and finances 
35% Calls on customers, maintains current account relationships, arranges appointments with 
prospective customers 
15% Engineer, design and manufacture product according to terms of agreement with 
customers 
5% Produce inventory, financial, production and other reports. 
On March 12, 2003, the director denied the petition. The director determined, in part, that the petitioner did 
not establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated that: 
[A]s the sole employee, [the beneficiary's] primary assignment cannot be supervising a 
subordinate staff of professional, managerial, or supervisory personnel. The service is not 
persuaded that operating a company in its entirety constitutes managing an essential function 
within an organization as set forth at 5 101(a)(44)(A)(ii) of the Act. Furthermore, the 
petitioner has not demonstrated that the beneficiary is operating at a senior level within an 
organizational hierarchy as required for a manager of an essential function. 
On appeal, counsel asserts that that petitioner provided sufficient evidence to show that the beneficiary will be 
employed in a primarily managerial and executive capacity, and that "[tlhe Service Center failed to give any 
weight and credibility to that evidence." The petitioner submits: (1) an affidavit from the beneficiary further 
describing his duties; and (2) extensive documentation that discusses the petitioner's operations and 
employees hired after the date of filing the petition. In his brief, counsel states that "the Service Center 
incorrectly treated [the] Petitioner's . . . small corporate size as dispositive with regard to being disqualified 
for eligibility" and cites Johnson-Laird, Inc. v. INS, 537 F. Supp. (D. Or. 1981) to stand for the proposition 
that a sole proprietor can qualify for L-1 classification. In his affidavit, the beneficiary describes his duties as 
follows: 
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[A]t this time; I am performing most of the executive functions . . . . I am responsible for 
manufacturing, marketing, sales, purchasing, finance, personnel, training, overseeing 
administrative functions, property management, transportation and legal accounting service 
providers . . . . I negotiate contracts for in house vendors and leases . . . . I negotiated the 
leases for our warehouse space in Plymouth, Minnesota . . . . I was responsible for the entire 
process of purchasing the very expensive equipment [the petitioner] needs to manufacture to 
my quality standards . . . . I will monitor the products and meet with the employees to discuss 
methodology for improving efficiency if necessary, product modifications or improvements . 
. . . I am continually and actively seeking new business opportunities and keeping a pulse on 
the trends in the food industry . . . . My engineering and manufacturing skills allow me to 
develop a prototype piece to offer to a potential customer . . . . It is my responsibility to 
determine what the appropriate delivery-promise date would be based upon my extensive 
knowledge of the manufacturing processes . . . . Consequently, I must be familiar with the 
entire process of manufacturing - from the purchase of raw materials to the method of 
delivery on the 'other side of the world. Planning a roadmap for this assembly line of issues 
has become a critical part of my business philosophy . . . . I am actively involved in the day 
to day operations and am physically present on the floor everyday. I personally direct the 
design, development, fabrication delivery and installation of our custom manufactured 
stainless steel products and services . . . . 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. In the instant case, counsel for the petitioner asserts that the beneficiary is primarily engaged in 
both managerial duties and executive duties. Therefore, the petitioner must establish that the beneficiary 
meets each of the four criteria set forth in the statutory definition for executive duties under section 
101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 101(a)(44)(A) of the 
Act. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's tasks, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. The petitioner provided a lengthy job description for the beneficiary, 
including a breakdown of the amount of time he will spend on categories of tasks. Yet, the record suggests 
that within each category there are non-qualifying duties that the beneficiary will perform. For example, the 
petitioner states that the beneficiary will spend 25 percent of his time "[e]stablishing financial and production 
goals; coordinat[ing] production and delivery times; [and] overseering] accounts and finances." Within this 
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category, it is evident that "oversee[ing] accounts and finances" includes numerous non-managerial and non- 
executive tasks such as managing a checking account, paying routine bills, compiling and submitting payroll 
data, and performing basic accounting tasks. Further, the petitioner indicates that the beneficiary will spend 
five percent of his time "[producing] inventory, financial, production and other reports." Within this 
category, it is evident that "[producing] inventory . . . reports" includes the non-managerial and non-executive 
task of actually taking inventory of the petitioner's goods. 
Additionally, several of the categories of tasks described by the petitioner address duties that are exclusively 
non-qualifying. For example, the petitioner states that the beneficiary will spend 15 percent of his time 
"[engineering], design[ing] and manufactur[ing] product[s] according to [the] terms of agreement[s] with 
customers." In his affidavit on appeal, the beneficiary states that his "engineering and manufacturing skills 
allow [him] to develop a prototype piece to offer to a potential customer." These tasks involve directly 
producing the petitioner's products and providing the petitioner's services. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Cornm. 1988). Further, the petitioner states that the beneficiary will spend 35 percent of his time "[calling] 
on customers, maintain[ing] current account relationships, [and] arrang[ing] appointments with prospective 
customers." These tasks appear to be routine sales functions, and do not fall directly under traditional 
managerial or executive duties as defined in the statute. 
Thus, the record suggests that up to 75 percent of the beneficiary's time is invested in non-qualifying duties, 
and the petitioner has not established that he will be primarily employed in a managerial or executive 
capacity. See section 101(a)(44)(A) and (B) of the Act; Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 101(a)(44)(C), 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for CIS to consider the size 
of the petitioning company in conjunction with other relevant factors, such as a company's small personnel 
size, the absence of employees who would perform the non-managerial or non-executive operations of the 
company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required by section 101(a)(44)(C) of the 
Act, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. 
The petitioner operates as a stainless steel product manufacturer and distributor. Thus, it is evident that the 
reasonable needs of the petitioner require its employees to perform numerous non-managerial and non- 
executive tasks such as designing stainless steel products, operating manufacturing machinery, soliciting sales 
and executing sales transactions, performing basic accounting and managing a checking account, paying bills, 
tracking inventory and ordering materials, receiving deliveries, arranging shipping of goods, answering the 
telephone, and providing custodial services. As the beneficiary is the sole employee of the petitioner, it is 
clear that he must perform all of these non-qualifying tasks. Thus, the reasonable needs of the petitioner 
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suggest that the beneficiary must spend a significant amount of time performing the tasks necessary to 
provide the petitioner's services. Again, an employee who primarily performs the tasks necessary to produce 
a product or to provide services is not considered to be employed in a managerial or executive capacity. 
Matter of Church Scientology International, 19 I&N Dec. at 604. The petitioner has failed to establish that 
these non-managerial and non-executive tasks do not constitute the majority of the beneficiary's time. See 8 
C.F.R. 3 214.2(1)(3)(ii). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are superirisory, 
professional, or managerial. See Section 101(a)(44)(A)(ii) of the Act. Counsel indicates and the record 
confirms that the beneficiary was the petitioner's sole employee as of the date of filing the petition. The 
petitioner hired additional employees after the filing date. Yet, 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 of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Cornm. 1978). Accordingly, the fact that the petitioner hired employees after filing the 
petition is not probative of the beneficiary's eligibility as of the filing date. The petitioner provides that it 
uses the services of an accountant and corporate attorney. Yet, the record contains no evidence to suggest that 
the beneficiary has direct supervisory authority over the accountant or attorney. Thus, the petitioner has not 
shown that the beneficiary manages subordinate employees who are supervisory, professional, or managerial. 
See Section 101(a)(44)(A)(ii) of the Act. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and 
employees in the future. However, as noted above the petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. See Matter of Michelin Tire Corp., 17 I&N Dec. at 248. Furthermore, 8 
C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in CIS regulations that 
allows for an extension of this one-year period. If the business is not sufficiently operational after one year, 
the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner states that the 
ongoing conflict between Israelis and Palestinians produced a negative impact on the petitioner's operations 
during the first year of business. However, the regulations do not provide for the consideration of such 
external factors in this proceeding. The petitioner has not shown that it has reached the point that it can 
employ the beneficiary in a predominantly managerial or executive position. 
Counsel states that "[tlhe record is void of any evidence that [the beneficiary's] responsibilities as President 
of [the foreign entity] and as President and Chief Manager of [the petitioner] are clerical or that the duties 
described are vague or nondescript." However, in visa petition proceedings, the burden is on the petitioner to 
establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The 
petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit 
sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 
1988); Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965). In denying a visa petition, the director and the 
AAO do not have the burden to point to evidence that proves that the petitioner is not eligible for the benefit 
sought. 
LW-02-262-53614 
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Counsel references the director's statement that "the fact that an individual operates a small business does not 
establish eligibility for classification as a managerlexecutive within the meaning of. . . the Act." Regarding 
this statement, counsel asserts that "the Service erred in applying an incorrect legal standard and/or confusing 
the applicable burdens of proof." The plain meaning of the director's statement provides that, by itself, the 
fact that an individual operates a small business does not serve as prima facie evidence that he is eligible for 
classification as a multinational manager or executive. Further evidence must be examined to determine if 
such a beneficiary is employed in a primarily managerial or executive capacity. The record does not reflect 
that the director applied an incorrect legal standard regarding the beneficiary's employment capacity or 
eligibility for L-1A classification. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
executive or managerial capacity, as required by 8 C.F.R. 8 214.2(1)(3). For this reason, the appeal will be 
dismissed. 
The second issue in this proceeding is whether the petitioner has been doing business throughout the one-year 
period prior to filing the petition. 
The regulation at 8 C.F.R. 8 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe 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. 
In the initial petition, the petitioner stated that it seeks to engage in the business of stainless steel product 
manufacturing and distribution. The petitioner submitted evidence of its operations, including: (1) 
documentation of the petitioner's purchase of metal working equipment in June, July, and August 2002; (2) 
an untranslated document purported to relate to the petitioner's purchase of metal working equipment; (3) a 
business proposal for the petitioner; (4) a letter from an attorney, dated July 25,2002, attesting to the fact that 
he represented the petitioner in transactions from November 2001; (5) a letter from an accountant attesting to 
the fact that his firm has been engaged by the petitioner for accounting, tax compliance, and planning since 
May 29, 2001; (6) an account printout from a bank or financial institution, dated July 22, 2002; and (7) 
evidence of a $20,000 deposit into the petitioner's Wells Fargo bank account on June 26,2002. 
On October 18, 2002, the director requested additional evidence. Regarding the petitioner's business 
operations, the director requested: (1) a copy of the petitioner's 2001 United States Corporate Federal Tax 
Return; (2) copies of the petitioner's Forms 941, Employer's Quarterly Tax Return, for the year prior to filing 
the petition; (3) copies of the petitioner's State Unemployment Compensation Form for the prior year; (4) a 
detailed organizational chart for the petitioner; and (5) evidence that the petitioner was engaged in the regular, 
continuous and systematic provision of goods and services. 
In a response dated January 7,2003, in part the petitioner submitted: (1) a copy of the petitioner's 2001 Form 
1065, U.S. Return of Partnership Income; (2) copies of Forms 941, Employer's Quarterly Tax Return, for the 
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second and third quarters of 2002; (3) a prospective organizational chart for the petitioner; (3) a document 
titled "Expense List" detailing expenses from May to November of an unspecified year; (4) a letter from the 
owner of City Bagels, indicating that it conducted business with the petitioner during October and November 
of 2002; (5) invoices that the petitioner issued to clients for services performed, dated October 5, October 24, 
November 14, November 19, November 21, December 2, and December 13, 2002; and (6) a letter from 
Seelye Craftsmen Co., dated November 22, 2002, thanking the petitioner for business "conducted in the past 
year." 
On March 12, 2003, the director denied the petition. The director determined, in part, that the petitioner did 
not establish that it has been doing business throughout the one-year period prior to filing the petition. 
Specifically, the director stated that: 
The submitted tax documents reflect little or no economic activity. The petitioner submitted 
invoices for goods and services provided, all issued subsequent to the filing of the petition. 
The record contains no evidence to establish that at the time this petition was filed the 
petitioner was engaged in the regular, systematic and continuous provision of goods and 
services. 
On appeal, counsel asserts that the evidence of record clearly demonstrates that the petitioner has been doing 
business over the previous year. Counsel states that, in response to the director's request for evidence, 
"[u]nfortunately, a complete response with a sufficient evidentiary showing was not made at that time nor was 
an accurate flow chart submitted which evidenced the true operations of the companies . . . . In connection 
with this motion, [the] Petitioner has now furnished complete and accurate records . . . ." In support of these 
assertions, the petitioner submits: (1) an opinion letter from Jeffrey Rose, CPA, dated April 7, 2003, 
discussing the petitioner's operations; (2) an affidavit from the beneficiary; and (3) a document prepared by 
Edward F. Schultz titled "Business Validation Report" compiled from March 26 to April 2,2003. 
Upon review, counsel's assertions are not persuasive. As stated above, in the request for evidence the director 
requested evidence that the petitioner was engaged in the regular, continuous and systematic provision of 
goods and services. 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. $5 103.2(b)(8) and (12). 
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 will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). Counsel concedes that the petitioner's response to the director's request for evidence was 
inadequate. The petitioner now provides numerous documents on appeal to address the director's concerns, 
including an opinion letter and a detailed report on the petitioner's business activities. If the petitioner had 
wanted this evidence to be considered, it should have submitted the documents in response to the director's 
request for evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency 
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of these documents submitted on appeal. Id. The appeal will be adjudicated based on the record of 
proceeding before the director. 
In the support letter submitted with the initial petition, the petitioner described various metal-working 
machines that it had purchased from a company in Italy, and indicated that "delivery is expected any day 
now." The petitioner further described machines it intended to purchase in the future. The petitioner 
provided documentation of its purchase of metal working equipment in June, July, and August 2002. These 
statements and documents reflect that, as of the filing date of the petition, the petitioner did not have 
possession of equipment necessary to provide its stainless steel products. The petitioner did not commence 
purchasing such equipment until two months before filing the present petition. The fact that the petitioner did 
not have the necessary equipment to provide its products at any time during the one-year period prior to filing 
seriously undermines a finding that the petitioner was doing business during that period. See 8 C.F.R. 9 
2 14.2(1)(ii)(H). 
The petitioner provided an untranslated document purportedly relating to its purchase of metal working 
equipment during the one-year period prior to filing the petition. Because the petitioner failed to submit 
certified translations of the document, the AAO cannot determine whether it supports the petitioner's claim to 
be doing business. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded any weight in this proceeding. 
The petitioner provided a letter from an attorney, dated July 25, 2002, attesting to the fact that he represented 
the petitioner in transactions from November 2001. Yet, the petitioner has failed to describe the transactions 
to which the attorney refers. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). The petitioner submitted a letter from an accountant attesting to the fact 
that his fm has been engaged by the petitioner for accounting, tax compliance, and planning since May 29, 
2001. Yet, the fact that the petitioner engaged in planning and filed tax forms does not serve as evidence that 
the petitioner has engaged in "the regular, systematic, and continuous provision of goods andlor services" 
throughout the previous year. See 8 C.F.R. 5 214.2(l)(ii)(H). Further, the petitioner's July 22, 2002 bank 
statement and evidence of a $20,000 deposit on June 26, 2002 do not serve as evidence of doing business 
from August 2001 to August 2002, as they do not indicate the source of referenced funds, and only address a 
one-month period. See id. 
In response to the director's request for evidence, the petitioner submitted a copy of its 2001 Form 1065, U.S. 
Return of Partnership Income. As this document shows that the petitioner had no income in 2001, it suggests 
that the petitioner was not doing business during that period. The petitioner's Forms 941, Employer's 
Quarterly Tax Return, for the second and third quarters of 2002, both show that the petitioner paid no salaries 
or wages during those respective periods, and thus do not serve as evidence that the petitioner was doing 
business during those periods. The petitioner provided a document titled "Expense List" detailing expenses 
from May to November of an unspecified year. As the year is not provided, the AAO cannot determine if the 
document supports that the petitioner was doing business for the previous year. The petitioner submitted a 
letter from Seelye Craftsmen Co., dated November 22, 2002, thanking the petitioner for business "conducted 
in the past year." Yet, the letter does not describe what business was conducted, or the frequency that it was 
LIN-02-262-536 14 
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conducted. Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of Calgornia, 14 I&N Dec. at 
190. 
The petitioner further submitted a letter from the owner of City Bagels, indicating that it conducted business 
with the petitioner during October and November of 2002, as well as invoices that the petitioner issued to 
clients for services performed, dated October 5, October 24, November 14, November 19, November 21, 
December 2, and December 13, 2002. These documents relate to the petitioner's business activity that 
occurred after August 15, 2002, the date of filing the petition. The petitioner must establish eligibility at the 
time of filing the nonirnmigrant 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). As this evidence relates to activity that occurred after the date of filing, it is 
not probative of whether the petitioner was doing business during the one-year period prior to filing, 
Based on the foregoing, the evidence provided by the petitioner is insufficient to establish that it has been 
doing business for the previous year. 8 C.F.R. 5 214.2(1)(14)(ii)(B). For this additional reason, the appeal 
will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 8 214.2(1)(l)(ii)(G). Though the 
director commented that "[tlhe regulations defining qualifying organizations specifically excludes [sic] the 
mere presence of an agent or office of the organization," the director did not specifically find that the 
petitioner and the beneficiary's foreign employer do not possess a qualifying relationship. However, in the 
appellate brief counsel states that "the record establishes the existence of the requisite affiliate relationship 
between [the foreign entity] and [the petitioner] . . . in order to be considered qualifying organizations, 
contrary to the Service Center's unsupported findings."' Upon examination of the evidence of record, the 
petitioner has failed to submit sufficient documentation to show its ownership and the ownership of the 
foreign entity as of the date of filing the petition. 
In the initial petition, the petitioner indicated that the foreign entity is 100 percent owned by the beneficiary. 
As evidence of this, the petitioner provided a brief letter from an accountant, dated July 21, 2002, attesting 
that the beneficiary owns the foreign entity. The accountant does not specify, and the petitioner does not 
submit, the documents that the accountant presumably examined to form this conclusion. In response to the 
director's request for evidence, the petitioner provided another brief letter from the same accountant, claiming 
that the foreign entity is 100 percent owned by the beneficiary. Again, the accountant fails to identify the 
basis for his conclusion. The petitioner submitted an undated document from the Israeli Ministry of Justice, 
Registrar of Companies, that states that the beneficiary owns the foreign entity's 100 issued shares. The 
document further indicates that the foreign entity has the potential to issue a total of 27,100 shares. As this 
' Regarding counsel's comment that the director's findings are unsupported, the AAO again notes that, in visa 
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. The director and the AAO do not have the burden of affirmatively 
pointing to evidence to support negative findings. Id. 
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document is not dated, it is unclear whether the foreign entity issued additional shares after its creation, and if 
so, who owns such shares. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. at 190. Though counsel states that the foreign entity is wholly-owned by the beneficiary, without 
sufficient documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533,534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). Thus, the record is inconclusive regarding who owned the foreign entity as of the 
date of filing the petition. 
Based on the foregoing, the record is insufficient to show a qualifying corporate relationship. See 8 C.F.R. 3 
2 14.2(1)(14)(ii)(A). For this additional reason, the appeal will be dismissed. 
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), afd. 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). 
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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.