dismissed L-1A Case: Telecommunications

U.S. Department of Homeland Security 
20 Mass, Rm. A3042.425 1 Street, N W. 
Washington, DC 20529 
- 0 <,T# +? f . i.5 $ % , ~\~a~~~~ fp U.S. Citizenship 
and Immigration 
5."PPrr. b "L . a* 4 
invg,g&m ofpnonsl privacj 
File: SRC 04 177 50838 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. # 1 10 1 (a)(l S)(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. .4ny further inquiry must be made to that office. 
1 %-?? R bert P. Wiemann, Direc or 
Administrative Appeals Office 
b 
SRC 04 177 50838 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president 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. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
is engaged in the telecommunications business. The petitioner claims that it is a wholly-owned subsidiary of 
Biblos Telecommunicaciones C.A., located in Puerto Ordaz, Venezuela. The beneficiary was initially granted 
a one-year validity period, from July 15, 2003 tc July 15. 2004, in order to open a new office in the United 
States and the petitioner now seeks to extend the beneficiary's stay. 
On June 21, 2004, the director denied the petition concluding 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 determined that since the petitioner has already been given one year to establish the 
company, it can no longer be considered in a start-up phase, and therefore must establish the need for an 
executive or managerial employee in order to qualify for an L-1A visa. The director found that (1) the 
petitioner has not established that the beneficiary will not engage in the day to day operations of the business; 
(2) the beneficiary will have to engage in day to day business given the current structure of the company; and 
(3) the record does not support a finding that the petitioner will be supervising a subordinate staff of 
professional, managerial, or supervisory personnel who will relieve the beneficiary from performing non- 
qualifying duties. 
On July 15, 2004, counsel for the petitioner simultaneous'ly filed an appeal with the AAO and a motion to 
reopen and reconsider with the director. Counsel does not object to the specific findings of the director's 
decision. Instead, counsel asserts that the director's decision was based only on the results of the company's 
operations for the first two months of the business. Counsel then submits additional documentation regarding 
subsequent business operations of the petitioner. 
On August 2, 2004, the director issued a decision with respect to the petitioner's motion to reopen and 
reconsider. The director concluded that the petitioner failed to overcome all the reasons in the previous 
denial. Therefore, the director supports the previous decision and no new decision is entered. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOl(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. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
SRC 04 177 50838 
Page 3 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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 hirnlher 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. 9 2 14.2(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. 
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the 
part ofthe director, are insufficient to overcome the well-founded and logical conclusions the director reached 
based on the evidence submitted by the petitioner. The regulation at 8 C.F.R. 9 103.3(a)(l)(v) states, in 
pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
SRC 04 177 50838 
Page 4 
Rather than specifically identifying any error on the part of the director, the petitioner on appeal asserts that it 
did not open its first store until January 20, 2004, more than six months after the initial approval, as the 
company had a "slow start" because the beneficiary was delayed in obtaining a social security number. The 
petitioner requests additional time in order to develop the business. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation one year from the 
date of approval of the petition to establish the new office. 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 has not reached the point that it can employ the beneficiary in a primarily 
managerial or executive position. On review, the record as presently constituted is not persuasive in 
demonstrating that the beneficiary has been or will be employed in a primarily managerial or executive 
capacity. Although the petitioner requests additional time to develop the business, a visa petition may not be 
approved based on speculation of future eligibility or after the petitioner becomes eiigible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Kutigbak, 14 I&N 
Dec. 45,49 (Comm. 197 1 ). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 10 1 (a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks do not fall directly under traditional managerial duties as defined in the statute. For this reason, 
the AAG cannot determine whether the beneficiary is primarily acting In a managerial or executive position. 
See IKEA US, Inc. v. US. Dept. of Juslice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
In effect, the petitioner's failure to specifically identify any erroneous conclusion of law or fact concedes the . 
issues raised by the director. The petitioner's excuse for its lack of business activltie5 or the failure to employ 
the beneficiary in a primarily managerial or executive capacity are not sufficient to meet its burden of proof. 
For this reason alone, the appeal tnust be dismissed. 
Beyond the decision of the direct~r, at the time the petitioner seeks an extension of the new office petition, the 
regulations at 8 C.F.K. 5 214.2(1)(14)(ii)(B) requires the petitioner to dernonstrate that it has been doing 
business for the previous year. The term "doing business" is defined in the regulations as "the regular, 
systematic, and continuous provision of goods and/or services by a qualifying organilation and does not 
include the mere presence of an agent or office of the qualifying organization in the United States and 
abroad." 8 C.F.R. 213.2(1)(l)(ii). Because the petitioner has not demonstrated that it had been doing 
business for the year prior to filing this petition, this petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the !.A@ even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
SRC 04 177 50838 
Page 5 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 1 ), 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). 
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. tj 1361. Inasmuch as counsel has failed to identify specifically an 
erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not sustained that 
burden. Therefore, the appeal will be summarily dismissed. 
ORDER: The appeal is summarily dismissed.