remanded L-1A Case: Diversified Investments

U.S. Department of Homeland Seclirity 
20 Massachusetts Ave. N.W., Rrn. 3000 
Washington, DC 20529 
i&&@ing data delded to 
 U.S. Citizenship 
prevent clearly unw arrantec 
 and Immigration 
bya of persod pri~W Services 
File: SRC 05 093 5 1254 Office: TEXAS SERVICE CENTER Date: BE(: f t 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101(a)(15)(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 made to that office. 
pbert P. Wiemann, def 
pistrative Appeals Office 
SRC 05 093 5 1254 
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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 withdraw the director's 
decision and remand the petition to the director for further action and entry of a new decision. 
The petitioner seeks to employ the beneficiary temporarily in the United States 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. 6 1101(a)(15)(L). The petitioner is a Pennsylvania limited liability company that indicates it will be 
\ ,. ,\ , 
engaged in "diversified investments." The 
 claims to be a subsidiary of located 
in Kalupur, India. The petitioner seeks to employ the beneficiary as the chief executive officer of its new 
office in the United States for a one-year period. 
The petitioner indicated that the instant beneficiary was previously the beneficiary of an approved new office 
May 4, 2004 until February 11, 2005. The petitioner explained that the 
business operations, and that the beneficiary formed the new U.S. company rather than seek an extension with 
his previous L-1A employer. The instant petitioner was organized in January 2005, and accordingly, the 
petitioner requested that the U.S. company be treated as a new office pursuant to the regulation at 8 C.F.R. 
2 14.2(1)(l)(ii)(F). 
The director denied the petition, determining that the petitioner did not establish that the beneficiary would be 
employed in a primarily managerial or executive capacity. The director determined that the petitioner did not 
qualify as a "new office" as defined at 8 C.F.R. 5 214.2(1)(l)(ii)(F) and therefore did not apply the regulations 
at 8 C.F.R. 3 214.2(1)(3)(~) in adjudicating 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 contends that the director 
overlooked the fact that the instant petition was filed by a new petitioner seeking to employ the beneficiary as 
chief executive officer of a new start-up company. Counsel contends that the director denied the petition "on 
the unrelated and irrelevant basis that the first petition did not show sufficient evidence of employees and 
successful growth." Counsel further asserts that the law and regulations do not preclude a second petition for 
a one-year start-up L-1A visa. Counsel submits a brief in support of the appeal. 
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: 
SRC 05 093 5 1254 
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(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 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. 9 214.2(1)(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 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 involves 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)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 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. 
As a preliminary matter, the AAO will address whether the petitioner qualifies as a "new office." The term 
"new office" is defined at 8 C.F.R. 3 214.2(1)(l)(ii)(F) as an organization which has been doing business in 
the United States through a parent, branch, affiliate or subsidiary for less than one year. 
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The term "doing business" is defined at 8 C.F.R. 9 214.2(l)(ii)(H) as the regular, systematic and continuous 
provision of goods andlor 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. 
The nonimmigrant petition was filed on February 14, 2005. The petitioner indicated on Form 1-129 that the 
beneficiary is coming to the United States in order to open a new office. The petitioner submitted its operating 
agreement, which indicates that the company filed its Articles of Organization with the Commonwealth of 
Pennsylvania on January 15, 2005. The petitioner indicated that the beneficiary was currently in the United 
States in L-1A status pursuant to an approved 1-129 petition filed by which 
was valid from May 4, 2 d therefore sought an extension of his L-1A status. 
The petitioner states that is an Illinois limited liability company established in 
October 2003. 
In a letter dated February 9, 2005, counsel for the petitioner noted that the beneficiary had only been granted 
- 
nine months in order to establish 
 and had further complications due to a delay 
in obtaining a U.S. social security number. Counsel iurther explained: 
During that shortened time period, [the beneficiary] researched the market for opportunities 
to acquire a business with growth prospects and on going operations, however this did not 
occur in the limited time provided. Rather than seek an extension of this L-1A start-up, a new 
start-up was established. 
On March 28, 2005, the director requested additional evidence, including evidence that the U.S. company has 
been doing business for one year. In a response dated June 16,2005, counsel emphasized that the petitioner is 
seeking L-1A status for the beneficiary so that he may direct a start-up operation. Counsel indicated that the 
petitioner had completed acquisition of the first of its operations, which would involve management of a 
motel. 
The director denied the petition on August 3 1, 2005, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity in the United States. The 
director acknowledged that the petitioner is requesting an extension of stay and seeks to employ the 
beneficiary to direct the start up operations for a new company. The director determined the following: 
[Tlhe petitioner is not currently being considered a new office. The Citizenship and 
Immigration Services (CIS) granted the beneficiary L-1A status to establish its business and 
to support an executive or managerial position. Further projections of company expansions 
cannot be used to establish intercompany [sic] transferee status where, the petitioning entity 
is not a new office. In order to qualify for an L-IA visa after the organization becomes 
operational, the petitioner must establish the duties and need of the beneficiary as a 
managerial or executive employee. 
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Since the beneficiary has already been granted L-1A status to establish an initial U.S. 
company, this company cannot be still considered in a start-up phase. No evidence was 
submitted initially or in response to the request for additional evidence to demonstrate that 
the previous start up business became operational. 
On appeal, counsel for the petitioner states that "the Decision appears to overlook the fact that this is not an 
extension of L-1 status for a 3-year period with the same previous petitioner. This is a new petitioner seeking 
to employ the beneficiary as CEO for a new start-up corporation." Counsel asserts that the issues raised by 
the director regarding the staffing or activity of the previous petitioner are not germane to this petition. 
Counsel requests that the petition be adjudicated as a new office pursuant to the regulations at 8 C.F.R. 5 
2 14.2(1)(3)(~). 
Upon review, the AAO concurs with counsel's assertions and will withdraw the director's August 31, 2005 
decision. The director incorrectly determined that the petitioner could not qualify as a "new office" pursuant 
to 8 C.F.R. fj 214.2(1)(l)(ii)(F). As noted above, the regulations define "new office" as an organization which 
has been doing business in the United States through a parent, branch, affiliate or subsidiary for less than one 
year. The record suggests that neither the instant petitioner, nor the beneficiary's previous L-1A employer, 
which is claimed to be an affiliate of the petitioner, had been doing business in the United States for one year 
or longer as of the date of filing. Accordingly, the petitioner, based on the evidence submitted, should have 
been considered as a new office. As noted by counsel on appeal, the regulations do not prohibit the filing of 
a second "new office" petition by a different U.S. employer on behalf of a beneficiary who was previously 
granted L-1A classification in order to open a new office in the United States. 
The AAO finds sufficient evidence in the record to conclude that the instant petition should have been 
adjudicated under the regulations pertaining to new office petitions at 8 C.F.R. tj 214.2(1)(3)(~). The 
director's failure to recognize that the petitioner qualifies as a "new office" consequently led to a flawed 
analysis of the beneficiary's proposed employment in a managerial or executive capacity. The one-year "new 
office" provision is an accommodation for newly established enterprises, provided for by CIS regulation, that 
allows for a more lenient approach to petitions filed on behalf of managers or executives that are entering the 
United States to open a new office. Accordingly, if a petitioner indicates that a beneficiary is coming to the 
United States to open a "new office," it must show that it is prepared to commence doing business 
immediately upon approval so that it will support a manager or executive within the one-year timeframe. See 
generally, 8 C.F.R. fj 214.2(1)(3)(~). At the time of filing the petition to open a "new office," a petitioner must 
affirmatively demonstrate that it has acquired sufficient physical premises to house the new office and that it 
will support the beneficiary in a managerial or executive position within one year of approval. Specifically, 
the petitioner must describe the nature of its business, its proposed organizational structure and financial 
goals, and submit evidence to show that it has the financial ability to remunerate the beneficiary and 
commence doing business in the United States. Id. 
Although the director's decision will be withdrawn, the AAO finds insufficient evidence to establish the 
petitioner's and beneficiary's eligibility for this visa classification under the "new office" regulations at 8 
C.F.R. 3 214.2(1)(3)(~). Accordingly, the petition will be remanded to the director for further action and entry 
of a new decision in accordance with the following discussion. 
 , 
SRC 05 093 5 1254 
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The petitioner did not submit a lease agreement or other evidence that the petitioner had secured sufficient 
physical premises to house the new office as of the date of filing, as required by 8 C.F.R. $ 214.2(1)(3)(v)(A). 
The petitioner indicated a business address of 175 Stafford Avenue, Wayne, Pennsylvania 19087. The 
director is instructed to request evidence that the petitioner had a valid lease agreement for this premises, or 
other physical premises sufficient to operate the business, as of February 14, 2005. The petitioner also failed 
to outline the type and amount of space required for its proposed business. 
Further, the record as presently constituted does not contain sufficient evidence to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity within one year of the 
approval of the petition. 8 C.F.R. $ 214.2(1)(3)(v)(C). The petitioner provided only a vague position 
description for the beneficiary that fails to specify the actual managerial or executive duties to be performed 
by him on a day-to-day basis as chief executive officer of the petitioner's new office in the United States. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 
1990). 
The petitioner should be instructed to submit a comprehensive description of the beneficiary's proposed 
duties, including the percentage of time he will devote to each duty on a weekly basis, and a description of the 
beneficiary's "typical day." If the petitioner states that the beneficiary will "direct," "manage," "oversee," or 
"supervise" an aspect of the petitioner's business, it should clarify who would perform non-qualifying duties 
associated with the activity or function. 
Furthermore, in order to establish that the U.S. company will be capable of supporting the beneficiary in a 
managerial or executive position within one year of approval of the petition, the petitioner is required to 
submit evidence regarding the proposed nature of the office, describing the scope of the entity, its 
organizational structure, and its financial goals, and evidence regarding the size of the United States 
investment. See 8 C.F.R. $9 214.2(1)(3)(v)(C)(2) and (3). 
The record at the time of filing contained no detailed description of the type of business to be operated by the 
petitioner, no business plan outlining the proposed scope, nature and objectives of the organization, no 
evidence regarding the types of positions to be filled during the first year of operation, and no evidence of the 
size of the investment in the U.S. company. The petitioner merely stated that it anticipated hiring three to five 
employees and estimated its gross income at $150,000. The director is instructed to request further evidence 
to establish that the beneficiary will be employed in a primarily managerial or executive position by the end 
of the first year of operations. The petitioner should provide a business plan providing specific dates for each 
proposed action for the next two years, beginning with the filing date of this petition. The business plan 
should document the anticipated volume of business, gross income predictions and staffing issues. 
If not included in the business plan, the petitioner should provide a hiring plan outlining when it intends to 
staff each of its open positions. The petitioner should also provide job duties and educational requirements for 
each position, and indicate whether the beneficiary's subordinates will be employed on a full-time, part-time 
or commissioned basis. The evidence submitted should establish who will be responsible for performing the 
petitioner's administrative, clerical and operational functions, including, if applicable, market research, 
SRC 05 093 5 1254 
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marketing, advertising, purchasing, sales, customer service, administrative and clerical tasks and any other 
functions inherent to the type of business to be operated by the petitioner. 
In addition, the record as presently constituted contains no evidence regarding the petitioner's financial goals. 
There is also no evidence of the size of the United States investment, nor evidence that the company's 
shareholders had actually transferred any monies to the petitioner as of the date of filing. See 8 C.F.R. 
214.2(1)(3)(v)(C)(2). Again, the director is instructed to request additional evidence to provide the petitioner 
with an opportunity to address these deficiencies. 
The AAO acknowledges the petitioner's submission of a lease agreement for a Super 8 Motel located in West 
Virginia, dated April 25, 2005. The lease agreement references the landlord's franchise agreement with Super 
Motels and notes that the petitioner, as tenant, must comply with all terms, conditions, restrictions, and 
stipulations contained in the franchise agreement. The petitioner did not however, provide a copy of the 
franchise agreement or otherwise clarify its relationship with Super 8 Motels. 
The remaining issue to be addressed is whether the petitioner and the foreign entity have a qualifying 
relationship as required by 8 C.F.R. 214.2(1)(3)(i). The petitioner claims that it is a majority-owned 
As evidence of the U.S. company's ownership, petitioner submitted the U.S. company's operating agreement 
which indicates that holds a 51 percent interest in the company, and that the beneficiary 
holds a 49 percent the members' initial capital contributions were in the amounts of 
$2,550 and $2,450, respectively. The petitioner did not, however, submit evidence that the foreign entity 
actually paid for its membership interest in the company, nor does the record contain the company's articles of 
organization or membership certificates. The director is instructed to request additional evidence to establish 
the ownership and control of the U.S. company. If available, the petitioner should also submit its 2005 federal 
tax returns with all required schedules. The AAO notes that there are several business documents in the 
record which identify the beneficiary as the "ownerloperator" and sole member of the petitioning company. It 
is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). 
It is emphasized that 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. Comm. 1978). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, February 14, 
2005. 
In this matter, the evidence of record raises underlying questions regarding eligbility. Further evidence is 
required in order to establish that the petitioner and beneficiary meet the requirements for this nonimmigrant 
visa classification as of the date of filing the petition. The director's decision will be withdrawn and the 
matter remanded for further consideration and a new decision. The director is instructed to issue a request for 
evidence addressing the issues discussed above, and any other evidence she deems necessary. 
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ORDER: 
 The decision of the director dated August 25, 2005 is withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a new 
decision.