remanded L-1A Case: Electronic Payment Services

.1
PUBLI.C COPt
U~S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rrn. 3000
Washington , DC 20529
U.S.·Citizenship
and Immigration
Services
File: . WAC 06 ,12551628 Office: CALIFORNIA SERVICE CENTER Date: DEC, 04 ZDU7
INRE: Petitioner :
Beneficiary :
.Petition:
. . ' . ' .
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) ofthe Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
. This is the decision ' of the Administrative Appeals 'Office in your case . All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office ..
· RO~f
Administrative Appeals Office
www.uscis.gov
. i WAC 06 12551628
Page 2 ·
. .
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now bef~re 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-I A nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L)'ofthe Immigration and Nationality Act (the Act), 8
U.S.C. § 1l01(a)(l5)(L). The petitioner, a Delaware lirnited liability company , intends to operate as an
electronic payment services provider. It states that it is a subsidiary of WorldClearing Holding, Inc., located
in Bratislava, Slovakia. The petitioner seeks to employ the beneficiary as the operating manager of its'new
office in the United States for a five-year period. 1
The director denied the petition, determining that the petitioner did not establish: (1) that the beneficiary
would be employed in the United States in a primarily managerial or executive capacity ; or (2) that the U .S.
company has been do ing business as defined in the regulations. The director determined thatthe petitioner, ,
which was established on June 10, 2004 , did not qualify as a "new office" as defined at 8 C .F.R. §
214.2(l)(1)(ii)(F) and therefore did not apply the regulations at 8 C.F.R. § 214 .2(l)(3)(v) in 'adj udicating 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 re~iew. On appeal , counsel for the petitioner contends.that the director '
erred in determining that the petitioner does not qualify as a "new office." Counsel emphasizes that although
the petitioner was formed in--2004, it had not commenced business operations in the United States as of the
date the petition was filed . Counsel asserts that , as a start-up company " the petitioner was not required to
establish that the beneficiary would immediately undertake full management responsibilities : Counsel
submits a brief and additional eviderl'cein 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)ofthe 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 capac ity.
The regulation at 8 C.P.R..§ 214.2(1)(3) states thatan 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 (1)(l)(ii)(G) of this section.
. . .. .
1 Pursuant to the regulation at 8 C.F.R. § 214 ~2(l)(7)(i)(A)(3), if the beneficiary is coming to the United St~tes
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
" WAC 06 12551628
Page 3
.' ' (ii)
, (iii) ,
(iv)
Evidence that the alien will be 'employed in an executive, managerial, or specialized
knowledge capacity, including adetailed description of the services to be performed.
Evidence that the alien has at least one continuous year of full-time employment
a'broad witha qual ifying ' organization within'the three years preceding the filing of.
the petition.
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 alieri'sprior ,
education, training, and employment qualifies him/her to perform the intended
services in the United States ; however, the work in the United States need not be the
same work which the alien performed abroad,"". . . . .
The regulation at 8 C.F.R. § 2l4.2(l)(3)(v) also provides 'that if the petition indicates ,that the beneficiary is
comingto the Un ;ited States as a manager or executive to open ~r be employed in a new office in the United
, , ,
States , the petit io?er 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 execut ive or managerial authority over the new
operation; 'and , .
(C) The intended United States operation , within one year of the approval of the petition ,
willsupport an executive or managerial posit ion as defined in paragraphs (l)(1)(ii)(B) .
, or (C) of this section, supported by information regarding:
, (1) The proposed nature of theoffice describing the scope of the entity, its
organizational structure , and its financial goals;
(2) The size' of the United States investment and the financial ability of the
,foreign entity to remunerate the beneficiary and to commence doing business
,in the United States ; and ,
(3) The organizational structure ofthe foreign entity.
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. § 214.2(1)(1 )( ii)(F) as an organization which has been doing business in
the United State s through a parent , branch , affiliate or subsidiary for less than one year.
The term "doing bus iness " .is defined ,at 8 C.F.R, § 2l4.2(1)(ii)(H) as the regular , systematic and continuous
pro vision of goods ami/or services by a qualifying organizat ion and does not include the mere presence of an
agent or office of the qualifying organization in the Uriited States and abroad.
'.' WAC 06 125 ,51628
Page 4
The ' nonimmigrant petition was filed on March 10, 2006. The petitioner indicated on the L 'Classification. ,
Supplement that the beneficiary is coming to the ' United States in order to open a new office. The petitioner
submitted a Certificate of Formation showing that the U.S. company was established as a Delaware limited
liability company on June 10 ,2004.
,Although the petitioner stated on Form 1-129 that the company was established in 2003, employed 15 people ,
and had gross annual income of $982,700 , the foreign ent ity's letter of support dated March 1, 2006 clarified
that .this information pertains to the foreign entity. The foreign entity stated that the beneficiary would be
responsible for overseeing the start up of the U.S. subsidiary company. ' The petitioner also provided a
business plan for the U.S. company.
The director issued a request for evidence on April 21, 2006, in which he requested evidence that the U.S .
company is doing business , including corporate tax returns for the last two years. The director also requested
quarterly wage reports and Federal quarterly tax returns for the previous four quarters.
, .
In :a: response dated July 10 , 2006 , the petitioner 'provided. a projected organizational chart for the U .S.
company , and noted that much of the evidence requested by the director was unava ilable:
[A]s a startup business in the U.S." [the petitioner] has not yet incurred payroll costs or tax
liabilities in .the U.S . and therefore it does not have any quarterly wage reports, payroll
summary , Federal (Fom1941) quarterly wage reports and federal income tax returns.
The director denied the petition on September 22,2006 on the grounds that the petitioner did riot establish: (1)
that the beneficiary would be employed in a primarily managerial or'executive position; and (2) that the U.S.
company was doing business .as defined , in the regulations . The director acknowledged the petitioner 's '
statements that the U.S. company is a start-up business , but rioted that as the company was established in June
2004, more than one year before the petition was filed , its statements were unpersuasive; The petition was '
denied in part based on the petitioner's failure to document the employment of prospective workers.
O~ appeal, counsel fo.r the petitioner asserts that the petitioner has not commenced doing busi~ess in the
United States and therefore qualifies as a new office for L-l purposes , pursuant to the definition at 8 C .F.R. §
2l4.2(l)(1)(ii)(F). Counsel submits ' additional documentary evidence in support of this claim , including the
petitioner's 2005 IRS Form ,1120, U.S. Corporation Income Tax Return , showing that the petitioner had no
assets , income or tax obligations in 2005 . ,T4e 'petitioner also submits an opinion letter from Bruce W.
McClain, a professor of accounting and business law at Cleveland State Uni versity, who opines that the
petitioning company did not .undertake any b~siness ' activities prior to 2006, and notes that it is not
uncommon for a company to delay business operations following formation o"rincorporation . .
Upon review , the AAO concurs with counseI"s assert ions and will withdraw "the director 's September 22,
2006 decision. The director had insufficient basis to determine that the petitioner ,did not qualify as a "new
office " as defined at 8 C.F.R . § 2l4 .2(l)(I)(ii)(F). Contrary to the director 's determination , the fact that the
' U.S. company was formally established on June i0, 2004, without more , does not serve as prima facie
evidence that a petitioner fs doing busines s as that term is defined at 8 C.F .R. § 214.2(l)(1)(ii)(G).
Furthermore, the director's finding that the U.S. company does not qualify as a "new office" implies that the
WAC 0612551628
Page 5"
director has determined ,that the U .S. company 'has in fact been doing business in the United States for at least
one year. The director in fact made a separate determination that the U .S. com~any has not been 'doing ,
busines s, thus making the decision , asa whole, internally inconsistent. .. '
The AAO therefore concludes that the instant petition should have been adjudicated under the regulat ions
pertaining to new office ,petitions at 8 C.F.R . § 214.2(l)(3)(v). 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 USCIS 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, S ee generally, 8 C.F.R. § 214.2(l)(3)(v). 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 pos ition within one year of approval. Specifically, the petitioner must describe the nature of its
business ,itsproposedorganizational 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. !d.
Although the director 's decision will be withdrawn, the AAO find~ insufficient evidence to establish the
petitioner's and beneficiary 's eligibility for this visa dlassification under the "new office" regulations at 8
C.F.R. § 214.2(l)(3)( v). Accordingly , the petition will be remanded to the director"for further action and entry
of a new decision in accordance with the following discussion .
The·record as presently constituted does not contain s~ fficientevidence to establIsh that the benefic iary 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(l)(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
president of the petitioner's new office in the l.Jn~ted · 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), aff'd, 905 F.2d 41 (2d . Cir. 1,990).
The petitioner should be instructed to submit a comprehensive description of-the beneficiary 's proposed
, duties, including the percentage of.time he will d evote 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 ofapproval of the 'petition , the petitioner is required to
submit evidence regarding the proposed natur~ ' 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.{R . §§ 2·14.2(l)(3)(v)(C)(2) and (3). '
WAC 06125 5i628
Page 6
· The record as presently constituted does not contain clearor consistent information regarding the petitioner's
proposed organizational structure. The petitioner's business plan dated January 2006, submitted with the
initial petition filing, includes a personnel plan whichidentifies the following positions to be filled during
2006: operating manager (the beneficiary) , an administrative assistant , a marketing manager, a server and
SMS center'administrator, two programmers, an accounting employee , and a claims and call center employee .
In response to the request for evidence, the petitioner indicated that the beneficiary's direct subordinates
would include a manager ,of finance, a manager of operations management " and a manager of business
development, none of which were identified in the business plan. The accompanying organizational chart
included a total of six proposed departments working under these three managers. The differences between
the business pian and the proposed organizational chart are significant. The petitioner is obligated to clarify
-the inconsistent and conflicting testimony by independent and objective evidence. Matter ofHo, 19 I&N Dec.
-582, 59J-92 (BIA 1988).
· To resolve these apparent discrepancies , the petitioner 'should provide a detailed 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 , technical and operational functions.
Another issue to be addressed is whether the petitioner has acquired sufficient physical premises to house the
proposed new office. See 8 C.F.R: § 214.2(l)(3)( y)(A) . The petitioner has not provided a lease agreement for '
the address indicated on Form 1-129. Although it appears that the company secured physical premises on July
1, 2006, the petitioner must establish eligibility as of the date of filing .' Furthermore , the.July 1, 2006 is a
"services agreement" and does not clearly indicate the amount or type of space secured. ' '
.To correct the deficiencies in the record, the petitioner should describe its anticipated space requirements and
submit evidence to establish that it was leasing commercial -space at the address listed on Form 1-129 asof the
· date of filing. If the petitioner is not able to provide additional evidence that it had secured' sufficient office .
'space as of the date of filing the petition, the petition cannot be approved.
Another issue not addressed by the director is whether the petitioner establ ished that the beneficiary was
employed by the foreign entity in a primarily managerial ,or executive capacity. The petitioner indicated that
the beneficiary has served as a,director and operations manager of the foreign ent ity, which is described as a
"repository and clearing house for electron ic online transactions." The petitioner's description of 'the
beneficiary's duties is vague and suggests that the beneficiary was directly involved in the day-to-day
operations of the company. For example , the petitioner .stated that the beneficiary "helped 'to run" the
business, including "programming, marketing , business development , making arrangements with banks ;
signing on and working with customers ," and entering into sales contracts. It is not clear based on this limited
description whether the beneficiary managed these operational functions through subordinate personnel, or
whether he directly performed non-managerial programming , sales and marketing duties. Reciting the
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient ; the regulations
require a detailed descript ,ion of the beneficiary's daily job duties. The petitioner failed to provide any detail
, or explanation of the beneficiary's activities in the course of his daily routine . The actual duties themselves
.' WAC 06 12551628
Page 7
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F . Supp. 1103 , 1108
(E.!?N.Y . 1989), aff'd, 905 F2d 41 (2d. Cir. 1990) .
. The .beneficiary's job description 'also included duties that seem implausible , considering the nature of the
foreign entity as an electronic payment services provider. The petitioner indicated that the beneficiary
" supervised the operations of the factory" and supervised a foreman. To correct these deficiencies ; the
. petitioner should be instructed to submit a compreh~nsive description of the beneficiary's duties while
employed by the foreign entity, including the percentage of time he devoted to specific duties on a weekly ··
basis, and a description of the beneficiary 's "typical day." If the petitioner states that the beneficiary. .
"directed," "managed, " or ."supervised" an aspect of the foreign entity's business, it sho~.tld clarify who
performed non-qualifying duties associated with the activity or function.
Finally, the petitioner should be instructed to provide a detailed organizational chart for the foreign entity
which reflects the staffing of the company during the .beneficiary's period of employment abroad from
February 2004 through March ·2005. The chart should clearly identify the names, job titles and job duties of
the beneficiary's subordinate employees .
. .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., 17I&N Dec. 248 (Reg. Comm. 1978) .
EvidenceaI1d explanation that the petitioner s~bmits .must show eligibility as of the filing daterMarch 10,
2006.
In this matter, the evidence of record raises underl ying questions regarding eligibility. 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 filirig the petition . The director's decision will be withdrawn arid 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.
ORDER: The decis ion of the director dated September 22, 2006 is withdrawn.' The matter is
remanded for further action and consideration consistent with the above discussion
and entry of a new decision .