dismissed L-1A Case: Wire Transfer

U.S. Department of liomeland Security 
20 Mass Ave, N W Rm A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
%'--17! r Robert P. Wiemann. Dir ctor 
Administrative Appeals Office 
6 
SRC 04 008 50601 
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. 
r The petitioner filed this nonimmigrant petition seeking to extend the employmefit of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the -Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1 lol(a)(15)(~j. The petitioner is a corporation organized in the State of Florida that 
is engaged in the wire transfer business. The petitioner claims that it is the subsidiary of 
, located in Maracaibo, Venezuela. The beneficiary was initially granted am 
stay to open a new office in the United States, and the petitioner now seeks to extend the benefic~ary's stay for 
an additional three years. 
The director denied the petition concluding that the petitioner had not established that: (1) it had been doing 
business as required by the regulations; (2) the petitioner had not established that it generated sufficient 
revenue to support a managerial or executive level po$tion; and (3) the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, the petitioner states that the at the time of 
the filing of the petition, the petitioner was waiting for the issuance of its business license, and thus was 
prohibited from commencing business operations until the license was issued. The petitioner notes on appeal 
that since the denial of the petition, the license had in fact been issued and the petitioner had since 
commenced its business operations. In support of these contentions, the petitioner submits a br~ef and 
addit~onal new evidence for consideration. 
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 continu? rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacrty. 
The regulation at 8 C.F.R. 5 214.2(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 organiqtions 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. 
SRC 04 008 50601 
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(iv) Evidence that the alien's prior year of emplsyment abroad was in a position that was 
managerial, executive or involved speciilkei howledge and that the alien's prior 
education, training, and employment qualifies himiher 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 performedabroad. 
The regulation at 8 C.F.R. 214,2(1)(14)(ii) also pr.ovides 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 (I)(I)(ii)(W) of this sectipn for the previous year; 
(c) A statement of the duties performed by the beneficiary for the prevtous year and the 
duties the beneficiary will perform under the extended petit~on; 
(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 this matter is whether the petitioner has been doing business as required by the regulations 
for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the tenn "doing business" as "the 
regular, systematic, and continuous provision of goods andor service; 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." 
J 
In this matter, the petitioner claims that it is engaged in the business of wire transfers. The petitioner repeatedly 
alleged prior to adjudication that the U.S. entity had not yet commenced its business operations because it had not 
yet received its Wire Transmitter License, whjch it had applied for on June 25, 2003. The director denied the 
petition, finding that the petitioner had failed to satisfy. the regulatory 'requirements for doing business. 
Specifically, the director noted that the petitioner's revenue for the calendar period ending July 3 1, 2003 was 
zero, and that it paid no salaries to employees. 
On appeal, counsel for the petitioner submits copies of,its newly acquired license, and alleges that since the 
license was issued on October 22, 2003, two days prior- to the denial, the petition should be reconsidered on 
this basis. In support of this contention, the petitioner submits a copy of said license along with a statement 
confirming that the petitioner had added the beneficiary and two new employees to the payroll. The petitioner 
SRC 04 008 50601 
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further stated that at the time of the filing of the appeal on November 11, 2003, the petitioner employed four 
employees. 
On review of the evidence submitted, the MO concludes that the petitioner failed to demonstrate that it had. 
been doing business during the previous year. The reco'id indicates that the beneficiary was granted a one- 
year period of stay from November 7, 2002 to ~ovembir & 2003 to open a new office. The record further. 
indicates that the beneficiary entered the United States shortly. after the visa approval to begin her duties. On 
or about January 30,2003, the petitioner retained the services of a local law firmto assist with the acquisition 
of a wire transmitter license. However, the license application was not filed-.until June 25, 200?. The AAO 
further notes that the applications for other important documents, such as a Certificate of Use and an 
Application for Occupational License, were not filed until ~u&2003. There is no explanation as to why there 
was such a significant delay in the filing of these applicatiqns. In addition, there is no documentation or 
information regarding the activities of the beneficiary and the petitioner during this time period. In fact, every 
attempt by the director to solicit further information fqm the petitioner was unsuccessful, with the petitioner 
always responding that it had not yet commenced business operations. 
Based on this information, it is clear that the petitioner was not doing business as required by 8 C.F.R. 5 
214.2(1)(14)(ii)(B). The AAO understands that the petitioner was required to wait for the issuance of the 
Wire Transmitter License prior to engaging in business transactions. However, the record is devoid of an 
explanation as to why the petitioner waited so many months before filing the relevant applications, and 
further lacks any explanation or documentation regarding other activities engaged in by the petitioner to 
promote its business during this period. A letter submitted on appeal, from the law finn retained by the 
petitioner, clearly states that the average wait time for a Wire Transmitter Llcense..was six months. The fact 
that the petitioner did not request this license until June of 2083, five months prior to the visa expiration, does 
not excuse the petitioner fiom meeting the regulatory requirefnents. 
The regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office./ Furthermore, at the time the petitioner seeks an 
extension of a new office petition, the regulations at 8 C.F.R,$ 214:2(1)(14)(ii)(B) require the petitioner to 
demonstrate that it has been doing business for the previous year. In .the present matter, the evidence 
submitted at the time of filing confirmed that the petitioner-had not been conducting business as required. 
The fact that the business license was obtained several days prior to the expiration of the beneficiary's stay 
does not automatically entitle the petitioner to an extensionaf the visa, for it fails to change the fact that the 
petitioner failed to conduct business during the previous ysar. For this reason, the petition may not be 
approved. 
The second issue in this matter is whether the: petitioner generated sufficient revenue from which it could 
support a managerial or executive position. The..,regulations at 8 C.F.R. §tj 214.2(1)(14)(ii)(d)-(e) require the 
petitioner to submit evidence of the U.S. entity's financial status, as well as evidence of wages paid to its 
employees, in order to be eligible for an extension. In this case, although requested by the director, the 
petitioner was unable to provide evidence establishing that jt paid wages to employees. In addition, a 
financial statement supplied indicated that the petitioner's net revenue was zero. 
SRC 04 008 50601 I 
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By its own admissions, the petitioner states that the foreign entity paid the beneficiary's salary, since the U.S. 
entity had yet to commence business. There were no available payroll tax records or W-2 forms which 
established that the petitioner had the ability to pay wages, although it was alleged that one person, 
would eventually be compensated as an independect contractor although no recdrds of this 
compensation were yet available. The non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. 8 C.F.R. tj 103.2(b)(2)(i). 
Since the petitioner had no revenue and paid no wages to employees during its first year of operations, the 
AAO concurs with the director's finding that the petifioner was unable to financially support a managerial or 
an executive position by the end of its first year of operjltions as required by 8 C.F.R. §214.2(1)(14)(ii)(D)-(E). 
The third issue in this 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 
assrgnrnent 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 subdiviiion of the organizatibn; 
(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 authorizatidn), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; Znd 
(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 virtueJ of the supervisor's supervisory duties unless the employees 
supervised are profespional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 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; 
SRC 04 008 50601 
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(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, the petitioner submitted an addendum outlining the beneficiary's proposed duties. 
Specifically, the petitioner stated that the benefi:i;ry will: 
-.- 
Plan, develop and establish policies cobjectives of [the] corporation. In addition, she will 
plan business objectiyes, develop organizational poliC,ies to coordinate functions .and 
operations. She will establish responsibilities and procehures. She will review activity 
reports and financial statements to determine progress and status in attaining objectives. She 
will direct and coordinate formulation of-financial programs to provide funding for new or 
continuing operations to maximize retm,s on investments, and to increase productivity. She 
also will plan and develop public relatipn policies designed to improve [the] company's 
image and relations with customers, emplogees, and public. 
Based on the evidence submitted with the initial petition, the direstor concluded that the record contained 
deficiencies. Thus, on October 15,2003, the director requested additional evidence. Specifically, the director 
requested evidence establishing the need for the extension of the beneficiary's stay;and specifically requested 
further details of the beneficiary's duties, including who would be performing the routine, non-executive and 
non-managerial tasks of the company if the .beneficiary was its sole-employee. 
The petitioner submitted a response on October 16, 2003. With regard to the director's question as to who 
would perform the routine tasks of the business, the petitioner stated-that there were no routine tasks to be 
performed because the business was not yet operational. The petitioner continued by explaining the 
beneficiary's involvement in the retention of the local law firm to handle its license application in January of 
2003, and concluded by stating that no further business dealings.~couId be undertaken until the license was 
issued. 
On October 24, 2003, the director denied the petition. The dixctor, who reviewed the record to determine 
eligibility under both managerial and executive capacitf, concluded that the beneficiary was not acting in a 
primarily managerial or executive capacity since she was not s2pertising a staff of professional, supervisory, 
or managerial employees, and did not employ a sufficient number of subordinate employees to relieve her 
from performing the routine tasks necessary to maintain .business operations. In addition, the director 
concluded that based on the petitioner's statements, ifwas impossible to conclude that there was sufficient 
work to allow the beneficiary to function in such a capacity. 
On appeal, the petitioner reiterates that it is still in the start up phase, but since it had recently obtained its 
license, the beneficiary could now be employed by the U.S. eEtity along with two additional employees. This 
argument is unpersuasive for two reasons. 
/ 
SRC 04 008 50601 
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First, 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. The petitioner indicates that sirice the 
denial of the petition, it has hired two additional employees and that it plans to hire additional mahagers and 
employees in the future. However, 8 C.F.R. $ 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 if-ieligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
#-- 
managerial or executive positio;. 
Second, there is no indication that the benefici?ry has actually been performing any duties during the past 
year. By the petitioner's own admission, the U&. entity hadnot cdmmenced business at the time of the 
petition's filing. The only notable action by the beneficiaryy& the retention of the local law firm to handle 
the application for the wire transmitter license in January 2003, The actual duties themselves reveal the true 
nature of the employment. Fedin Bros, Co., Ltd. v. Sava; 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). In this case, since the beneficiary's duties'appear to be few and far between, it is 
impossible to conclude that she has been acting in a primarily managerial or executive capacity.. At best, the 
beneficiary could be found to have performed the necessary start up and administrative tasks necessary to 
begin business operations, since the petitioner provided no evidence that it employed a subordinate staff to 
relieve the beneficiary of mundane duties. This classification is also insufficient to warrant a favorable 
conclusion in this matter, since 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 Scienlology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Finally, the AAO concurs with the director's conclusian that the-beneficiary was primarily engaged in day-to- 
day tasks as opposed to managerial or executive duties based oh the small staff employed by the U.S. 
petitioner. Counsel correctly asserts that a com~any's size alone, without talung into account the reasc~nable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the 
petitioning company in conjunction with other rele~ant~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 4 101(a)(44)(C) 
of the Act, 8 U.S.C. $ 1101(a)(44)(C); see, e.g. Systronics C~rp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The size of a company may be especially relevant when CIS notes discrepancies in the record and fails to 
believe that the facts asserted are tnik See id. 
The petitioner has failed to establish that the bepeficiary has been and will continue to be employed in a 
managerial or executive capacity, as required bi 8 C.F.R. §214.2(1)(3)(iv). The regulation at 8 C.F.R. 4 
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. go here 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 extenyion. In the instant matter, the petitioner, now in its second 
SRC 04 008 50601 
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year of business, has not reached the point that it can employ the beneficiary in a predominantly managerial 
or executive position. For this reason, the petition will be denied. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship exists between the petitioning entity and a foreign entity 
pursuant to 8 C.F.R. 4 214.2(1)(l)(ii)(G). The petitioner has not demonstrated that a qualifying relationship 
still exists with a foreign entity and has not persuasively demonstrated that the foreign entity will continue 
doing business during the alien's stay in the United States! As the previous decision will be affirmed, this 
f issue need not be examined further. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
f 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 ieviews 
7 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.