remanded L-1A Case: Helicopter Business

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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington , DC 20536
U.S. Citizenship
and Immigration
Services
FILE: WAC 05 11952504 Office: CALIFORNIA SERVICE CENTER Date: NOV 01 Z007
IN RE: Petitioner:
Beneficiary :
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10I (a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § I 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.
R~Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 11952504
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 decision of the director will be
withdrawn and the case will be remanded for further consideration and a new decision.
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its general manager
as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws
of the State of Delaware and is allegedly engaged in the helicopter business. .
The director, treating the petitioner as a "new office," denied the petition, concluding that the petitioner failed
to establish that it has secured sufficient physical premises to house the "new office."
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 asserts that the petitioner is not a "new
office" and , thus, was not obligated to establish that it had secured sufficient physical premises to house its
second United States location planned for San Francisco , California .
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. § 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)(I)(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 himlher to perform the intended services
in the Un ited States; however, the work in the United States need not be the same work
which the alien performed abroad .
WAC 05 11952504
Page 3
The regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is coming to the
United States as a manager or executive to open or to 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 involved
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)(1)(ii)(B) or (C) of this section,
supported by information regarding:
(1) 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.
The regulation at 8 C.F.R. § 214.2(I)(1)(ii)(F) defines a "new office" as:
[A]n organization which has been doing business in the United States through a parent,
branch, affiliate, or subsidiary for less then one year.
Moreover, the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(H) defines "doing business" as:
[T)he 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.
A threshold issue in this matter is whether the director correctly treated the petitioner as a "new office" in
adjudicating the petition.
ill the initial petition, the petitioner does not assert that the beneficiary is coming to the United States to open a
"new office." Rather, the petitioner asserts in the letter dated August 5,2005 that the beneficiary is coming to the
United States to be employed as a general manager "to expand [the petitioner's] existing operations in the United
States, including opening a second office in San Francisco, California." The petitioner also asserts that the
WAC 05 119 52504
Page 4
petitioner was established in the United States in 1996 and that it has been maintaining a sales office in New
Holland, Pennsylvania. In support of its petition, the petitioner submits a variety of organizational and business
documents including a copy of its 2004 tax return.
Nevertheless, the director requested additional evidence on May 19 ,2005. The director requested , inter alia, a
lease agreement for the proposed second office in San Francisco, California. In response, counsel submitted a
letter dated August 9 , 2005 in which he asserts that the petitioner is not a "new office" and , thus, is not obligated
to establish that it has already leased space in San Francisco for the petitioner's second United States location.
On August 26, 2005, the director denied the petition. The director, treating the petitioner as a "new office,"
denied the petition. The director determined that the petitioner's proposed second location in San Francisco is
an "organization" that has been in operation for less than a year. 8 C.F.R. § 214.2(l)(I)(ii)(F). Consequently,
the director reasoned that the petition must be denied because the petitioner failed to establish that it has
secured sufficient physical premises to house the San Francisco office, a criterion only specifically applicable
to organizations meeting the definition of a "new office."
Upon review, the AAO agrees with counsel and concludes that the petitioner does not meet the defmition of a
"new office" in 8 C.F.R. § 214.2(l)(l)(ii)(F) . First, the petitioner does not request to be treated as a "new
office" in the Form 1-129. Second, the record sufficiently establishes that the petitioning organization has
been in operation in the United States through a parent , branch , affiliate, or subsidiary for more than one year.
See id. The fact that the petitioner may be opening a new location , moving its place of business, or even
entering an entirely new line of business is of no consequence.
Therefore, the director's application of the "new office" criterion in 8 C.F .R. § 214.2(l)(3)(v)(A) was in error,
and, because this was the director 's only basis for denying the petition, the decision is hereby withdrawn .I
However, upon review, the petitioner has not submitted sufficient evidence to establish eligibility for the L-IA
classification as an established entity. While not addressed by the director, the petitioner provided insufficient
evidence to establish whether the beneficiary will be employed primarily in a managerial or executive capacity in
the United States. When examining the managerial capacity of the beneficiary, the AAO will look first to the
petitioner 's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner has failed to establish
that the beneficiary will be relieved of the need to perform non-qualifying administrative or operational tasks by a
subordinate staff or that he will manage supervisory, managerial , or professional employees, or will manage an
essential function of the organization. The record indicates that the petitioner has not yet hired a subordinate staff
'It is noted that, even though the director's decision will be withdrawn, the director's request for a copy of the
petitioner's San Francisco lease was an appropriate request under the circumstances. The petitioner
specifically avers that the beneficiary will be employed in San Francisco. It was entirely appropriate for the
director to question where the beneficiary will work immediately upon his arrival in the United States. The
existence , or non-existence , of a lease in San Francisco could , for example, be relevant to whether the
beneficiary will primarily perform qualifying duties immediately upon his arrival in the United States or
whether he will be primarily engaged in performing non-qualifying tasks related to setting up the San
Francisco office . However, as it was inappropriate to deny the petition for failing to meet a "new office"
criterion where the petitioner is not a "new office ," the decision must be withdrawn.
WAC 05 11952504
Page 5
in San Francisco or that it has an organizational complexity requiring the employment of a truly managerial or
executive employee. A visa petition may not be approved based on speculation of future eligibility or after the
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17
I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45 , 49 (Comm. 1971). Therefore , the
director is directed to review the record , request pertinent evidence addressing the beneficiary's duties and
subordinate staff at the time the petition was filed, and render a decision after review ing this evidence.
Second, the petitioner has provided insufficient evidence to establish that it has a qualifying relationship with
the foreign entity. In fact , the record contains at least one serious inconsistency undermining the petitioner 's
claim. While the petitioner asserts in the Form 1-129 that it is 100% owned b
in Hong Kong, the petitioner's 2004 Form 1120, U.S. Corporation Income Tax Return, indicates that the
petitioner does not have any foreign owners owning at least 25% of its stock and that no entity owns 50% or
more of the petitioner's stock. The record does not resolve this inconsistency. It is incumbent upon the
petitioner to resolve any inconsistencies in the record by iridependent 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) .
Furthermore, the 2004 Form 1120 indicates that the petitioner generated no revenue other than "management
fees" in 2004. As this does not establish that the petitioner was engaged in the regular, systematic, and
continuous provision of goods and/or services at the time the petition was filed, the record is not persuasive in
establishing that the petitioner is a qualifying organization .
Finally, while the petitioner claims to maintain a sales office in New Holland, Pennsylvania , the corporate
records of the Commonwealth of Pennsylvania do not indicate that the petitioner is or was registered to do
business in Pennsylvania as a foreign (Delaware) corporation .
Therefore, the director is directed to review the record , request pertinent evidence, and render a decision after
reviewing this evidence.
For these additional reasons, the appeal may not be sustained, and the matter must beremanded to the director for
further action.
ORDER: The decision of the director is withdrawn . The matter is remanded to the director for further
action consistent with the above and entry of a new decision which, if adverse, shall be certified
to the AAO for review.