remanded L-1A Case: Equipment Supply And Leasing

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofjce of Administrative Appeals, MS 2090 
identifiing data deleted to 
Washington, DC 20529-2090 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacl 
 and Immigration 
Services 
PUBLIC COPY 
File: WAC 08 244 51208 Office: CALIFORNIA SERVICE CENTER Date: JUL 2 8 1009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON 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. 
Appeals Office 
WAC 08 244 5 1208 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 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 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1101(a)(15)(L). The petitioner, a California corporation, intends to operate as an equipment supply 
and leasing company for the catering and wine industries. It claims to be a subsidiary of Vendology Ltd., 
located in Bristol, United Kingdom. The petitioner seeks to employ the beneficiary as the vice president of its 
new office in the United States for a period of three years.' 
The director denied the petition, determining that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Although the petitioner 
submitted evidence to establish that it qualifies as a "new office" as defined at 8 C.F.R. tj 214.2(1)(l)(ii)(F), 
the director did not apply the regulations at 8 C.F.R. tj 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, the petitioner asserts that the director failed to 
consider the petitioner's status as a new office, and thus did not take into account the reasonable needs of the 
organization as required by section 101(a)(44)(C) of the Act. The petitioner re-submits the petitioner's 
business plan for the first three years of operation and emphasizes that it is the beneficiary's intention to 
recruit sufficient staff during the first year of operations to relieve him from performing operational and 
administrative tasks. 
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. tj 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. 
' Pursuant to the regulation at 8 C.F.R. fj 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 08 244 5 1208 
Page 3 
(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 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. 5 214.2(1)(3)(~) 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. tj 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. 
The term "doing business" is defined at 8 C.F.R. $ 214.2(l)(ii)(H) as the 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. 
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 evidence that the U.S. company was incorporated in the State of 
WAC 08 244 5 1208 
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California in July 2008, two months prior to the filing of the petition. There is no evidence in the record to 
suggest that the petitioner has a parent, subsidiary or affiliate already doing business in the United States. 
The AAO notes that the petitioner stated on Form 1-129 at Part 5, questions #11-13 that it was established in 
2006, and has six employees, with gross annual income of $162,332. According to the evidence of record, 
the foreign entity was established in the United Kingdom in 2006. It is unclear whether the employee and 
income figures provided were meant to represent the foreign entity's current information or the petitioner's 
anticipated staffing size and projected income. While the AAO grants that these statements made on Form I- 
129 may have caused some confusion, the record as a whole clearly establishes that the petitioner is a new 
office. 
Therefore, the instant petition should have been adjudicated under the regulations pertaining to new office 
petitions at 8 C.F.R. 5 214.2(1)(3)(~). The director's failure to adjudicate this matter as a new office petition 
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 U.S. 
Citizenship and Immigration Services 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. 5 214.2(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. 5 214.2(1)(3)(~). Accordingly, the petition will be remanded to the director for further action and entry 
of a new decision. 
Upon review of the record, the AAO finds that additional evidence will be needed to satisfy the requirements 
of 8 C.F.R. 5 214.2(1)(3)(v)(C), and to establish that the company would realistically grow to a sufficient size 
to employ the beneficiary in a primarily managerial or executive capacity within one year of the approval of 
the petition. The petitioner has not provided any evidence of the financial situation of the U.S. entity or 
shown that an investment has been made in the U.S. company. The petitioner's business plan only mentions 
that the foreign parent company will financially support the U.S. operation during the first four months of 
operation and beyond, but the petitioner has not identified its capital requirements, start up costs, or the 
immediate availability of funds. There is also no evidence that any monies have been transferred from the 
foreign entity as an initial investment, or as payment for the issued stock. Without clear evidence of how and 
when the company will be financed, it is difficult to make a reasoned determination regarding the feasibility 
of the petitioner's business plan. 
WAC: 08 244 51208 
- Page 5 
The petitioner has also briefly outlined its proposed organizational structure for the first year of operations, 
and indicated that it intends to hire a personal assistant/office manager, a marketing assistant, two 
administrative personnel and an unidentified number of commissioned sales agents. The petitioner should be 
instructed to provide job duties, educational requirements and salarieslwages for each proposed 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, marketing, 
advertising, purchasing, sales, customer service, administrative, distribution and clerical tasks and any other 
functions inherent to the type of business to be operated by the petitioner. 
The record as presently constituted also contains no evidence that the petitioner has secured sufficient 
physical premises to house the new office in the United States. See 8 C.F.R. 5 214.2(1)(3)(v)(A). The 
petitioner indicated on Form 1-129 that the beneficiary will work at 2285 Palmer Drive, Helena, California 
94574. The petitioner should submit evidence that it leases or owns this premises and that the premises are 
authorized for commercial use. The petitioner should also provide photographs and a floor plan for the 
premises to establish that the premises are sufficient meet its business requirements for the first year of 
operations. 
In addition, the petitioner has not submitted sufficient evidence to establish that the foreign and U.S. entities 
have a qualifying relationship. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 10 l(a)(15)(L) of the Act; 8 C.F.R. €j 2 14.2(1). The petitioner indicates that the beneficiary is 
the sole owner of the foreign entity, and the foreign entity wholly owns all of the petitioner's issued stock. 
However, the petitioner has not submitted any documentary evidence in support of the claimed parent- 
subsidiary relationship. The petitioner should be instructed to submit evidence which may include, but is not 
limited to, copies of all stock certificates issued by the petitioner to date; a copy of the U.S. company's stock 
ledger; a copy of the petitioner's Notice of Transaction Pursuant to Corporations Code Section 25 102(f); and 
evidence that the foreign entity has in fact paid for its claimed stock ownership in the petitioning company. 
Finally, the record as presently constituted does not contain sufficient evidence to establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. 
Although requested by the director in a request for evidence issued on September 17,2008, the petitioner 
declined to provide a detailed description of the beneficiary's duties with the foreign entity or the percentage 
of time spent on each duty; nor did the petitioner provide the requested position descriptions and educational 
level for the beneficiary's subordinates, which appear to include a marketing officer and an administrative 
manager. The director should instruct the petitioner to submit additional evidence pertaining to the 
beneficiary's duties and the staffing structure of the foreign entity in order to correct these deficiencies. If the 
foreign entity uses the services of contracted or commissioned staff to perform any duties, the petitioner 
should describe in detail the duties they perform and provided evidence of fees, wages or commissions paid to 
such staff. 
WAC 08 244 5 1208 
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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, September 12, 
2008. 
In this matter, the evidence of record raises underlying 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 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 deemed necessary. 
ORDER: 
 The decision of the director dated November 4, 2008 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision.