remanded L-1A Case: Leather Goods Import/Export

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U.S. Department of Homeland Security
20 Massachusetts Ave . N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 07 007 51107 Office: VERMONT SERVICE CENTER Date : NOV OG 2007
INRE: Petitioner:
Beneficiary:
Petition : Petition for a Nonimmigrant Worker Pursuant to Section 101(aX15XL) of the Immigration
and Nationality Act, 8 U.S.C. § llOl(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 .
Robert P. Wiemann , hief
~ Administrative Appeals Office
www.uscis.gov
EAC 07 007 51107
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimm igrant 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 entryof a new decision.
The pet itioner seeks to employ the beneficiary temporarily in the United States as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) ofthe Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that intends to
import and distribute leather goods. It claims to be a subsidiary of Leather Mode International, located in New
Delhi, India. The petitioner seeks to employ the beneficiary as president/marketing director of its new office
in the United States for a one-year period.
The director denied the petition, determining that the petitioner had failed to establish that the U.S. entity
would employ the beneficiary in a primarily managerial or executive capacity within one year.
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
erroneously required that the petitioner establish that it can currently support a managerial or executive
position. Counsel further asserts that the director erred by determining that the beneficiary would not be
supervising managerial, supervisory or professional employees and that the petitioning company would not
require such workers as a "modest-sized import/export outfit." Counsel contends that the decision was largely
based on "mere conjecture regarding the needs of a new business." Finally, counsel objects to the director's
finding that the beneficiary's offered salary of $30,000 is "incongruous" with a managerial or execut ive
position, noting that the beneficiary's salary should be irrelevant to the adjudication of the petition. Counsel
submits a brief in support of the appeal. .
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualify ing 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)(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.
EAC 07 007 51107
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 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. § 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 (1)(l)(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 ofthe foreign entity.
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity within one year of the approval of the petition .
Section lOl(a)(44)(A) of the Act, 8 U.s.c. § llOl(a)(44)(A) , defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department , subdivision, function, or component of
the organization;
EAC 07 007 51107
Page 4
(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 subdivision of the organization;
(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 authorization) , or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(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 virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act , 8 U.S .C. § 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;
(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.
The nonimmigrant petition was filed on October 10, 2006. The petitioner stated on Form 1-129 that the
beneficiary would serve as its president/marketing director with responsibility to "oversee and establish initial
operations and activities, hire staff and implement company goals and policies , and oversee market research."
The petitioner indicated that it anticipates hiring a staff of three to five employees initially, and expects gross
annual income of$100 ,000 or more.
In a letter dated September 24 , 2006, the foreign entity indicated that the U.S. company will initially import
leather goods for sale in the United States and research potent ial distribution outlets in Latin American
markets. The foreign entity noted the beneficiary's responsibility to "start up our operations, hire staff, and
oversee market research to target optimal market potential for our exports."
The petitioner did not submit a bus iness plan or any information or evidence regarding its proposed business
operations, hiring plans, or organizat ional structure for the first year of operations. The petitioner provided a
copy of its lease agreement , but it did not identify the size or purpose of the leased premises . The petitioner
did not provide evidence of the size of the investment in the United States entity and its ability to commence
EAC 07 007 51107
Page 5
operations , or evidence of the organizational structure of the foreign entity. See generally 8 C.F .R. §
214.2(I)(3)(v).
Nevertheless, the only additional evidence requested by the director in his request for evidence issued on
November 29, 2006 was a proposed organizational chart for the U.S . entity, position descriptions for
subordinate positions to be supervised by the beneficiary, and photographs of the leased premises.
The petitioner provided a complete response to the director 's request on February 15, 2007. The petitioner
provided an organizational chart indicating that the beneficiary's direct subordinates would include an
administrative/general manager, a marketing/sales manager , an import/warehouse manager, and an
accountantlbudget analyst. The organizational chart indicates that the marketing/sales manager will supervise
a market research analyst and sales representatives, the import/warehouse manager will supervise
warehouse/shipping workers, and the administrative/general manager will supervise all employees, including
a recept ionist/clerical/filing assistant.
The petitioner also provided "proposed job descriptions for 2007-2008" which included detailed position
descriptions for each proposed employee. As these descriptions are part of the record, they will not be
repeated here. The beneficiary's position description was as follows:
Direct commencement of leather import/distribution business operations in new U.S.
subsidiary, making executive decision regarding location of business premises based on
market research [50% initially , until location secured]. Hire professional, managerial and
support staff, and continue to direct additional hiring, firing , and promotion of employees
[50% initially, then 15%]. Direct managerial staff including Administrator/General Manager ,
Marketing/Sales Manager , and ImportlWarehouse Manager, as well as professional staff such
as AccountantlBudget Analyst, setting company goals, policies, and procedures to be
implemented by middle management [30%]. Direct and oversee market research and
development of marketing strategies, based on reports by Marketing/Sales team; making
executive decisions regarding expansion of market activities to Latin America [25%].
Relying on Marketing/Sales team's analysis of potential national and international distribution
outlets and research strategies and direct implementation of such [15%] . Direct ImportlExport
Manager to ensure efficiency and compliance with import/export laws [10%]. Supervise and
direct AccountantlBudget Analyst, making executive investment and financial decisions
based on cost-benefit analysis and financ ial reports prepared by AccountantlBudget Analyst
[5%].
In a letter dated January 29, 2007 , the petitioner emphasized that the beneficiary would be removed from
performing the non-managerial functions of the business within one year of operation and will not be
performing tasks such as performing marketing research, conducting sales calls , or performing bookkeeping
and accounting tasks.
The director denied the petition on March 29 ,2007 , concluding that the petitioner had not established that the
beneficiary would be employed in a primarily managerial. or executive capacity within a one-year period. The
director acknowledged the detailed position descriptions submitted , and noted that the duties of the general
EAC 07 007 51107
Page 6
manager and accountantlbudget analyst "would normally require the skills of bona-fide professionals."
However the director concluded that the petitioner's "new modest-sized import/export outfit" would not
require workers who have professional-level expertise. The director further acknowledged that a number of
duties attributed to the beneficiary "would normally be required of or associated with a manager or
executive," but noted that "this service is not convinced that the beneficiary will actually be carrying out these
duties," or that the petitioner has a need for a bona fide manager or executive. Finally the director stated that
the salary offered to the beneficiary "is incongruous with that of an employee who is actually managing other
bona fide managers or professionals ."
On appeal, counsel for the petitioner asserts that the petition was improperly denied based on a finding that
the petitioner does not currently require and/or support a managerial or executive employee, or any
subordinate managerial or professional employees. Counsel emphasizes that the director even acknowledged
that the proposed duties for the beneficiary included qualifying managerial or executive duties, and that the
proposed duties of his subordinates do require the services of professionals, but denied the petition based on a
conjecture that a modest-sized import/export company cannot support managerial or professional positions.
Counsel asserts that "it is arbitrary and capricious for the USCIS to opine , at this very early stage in the
company's growth and development, that it is a 'modest sized outfit' that will never require any
managerial/executive and/or professionals workers ." Counsel emphasizes that the petitioner must only show
that it will support the beneficiary's managerial or professional position within one year.
Finally, counsel objects to the director's determination that the beneficiary's offered salary is incongruous with
a managerial or executive position . Counsel asserts that neither the statute nor the regulation require or permit
USCIS to consider the amount of the offered salary in determining whether an offered position is in a
managerial or executive capacity.
Upon review , 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 regulation at 8 C.F .R. § l03.2(b)(8) states the following:
If there is evidence of ineligibility in the record, an appl ication or petition shall be denied on
that basis notwithstanding any lack of required initial evidence ... , [1]n other instances
where there is no evidence of ineligibility, and initial evidence or eligibility information is
missing or the Service finds that the evidence submitted either does not fully establish
eligibility for the requested benefit or raises underlying questions regarding eligibility, the
Service shall request the missing initial evidence, and may request additional evidence ....
Although the director issued a request for evidence in this matter, the director's request did not adequately
address the missing initial evidence required by the regulations governing "new office" petitions. See 8 C.F.R.
§ 214.2(l)(3)(v).
Accordingly, as the evidence of record does not directly reflect that the petitioner or beneficiary is ineligible,
the director should not have denied the petition based on a lack of evidence without first requesting all of the
EAC 07 007 51107
Page 7
evidence that must be considered when adjudicating a petition for a new office. See 8 C.F.R. § 103.2(b)(8); 8
C.F.R. § 2l4.2(l)(14)(i). The AAO concurs with counsel that the director's decision was largely based on
conjecture and speculation, and also agrees that the director's determination that the beneficiary's salary is
"incongruous" with an executive or managerial position is not supported by the statute and regulations .
However, because of a lack of required initial evidence, the AAO cannot determine that the beneficiary would
be employed in a managerial or executive capacity within a one-year period. The petition will be remanded to
the director, who is instructed to request additional evidence consistent with the discussion below.
The one-year "new office" provision is an accommodation for newly established enterprises , provided for by
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first established and commences operations , the
regulations recognize that a designated manager or executive responsible for setting up operations will be
engaged in a variety of low-level activities not normally performed by employees at the executive or
managerial level and that often the full range of managerial responsibility cannot be performed in that first
year. In an accommodation that is more lenient than the strict language of the statute , the "new office"
regulations allow a newly established petitioner one year to develop to a point that it can support the
employment of an alien in a primarily managerial or executive position .
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. This evidence should demonstrate a realistic
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental
stage to full operations , where there would be an actual need for a manager or executive who will primarily
perform qualifying duties. See 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 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. The regulations require the
petitioner to disclose the business plans and the size of the United States investment, and thereby establish
that the proposed enterprise will support an executive or managerial pos ition within one year of the approval
of the petition.
As contemplated by the regulations, a comprehensive business plan should contain , at a mmrmum, a
description of the business,its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis , including the names of competing businesses and
their relative strengths and weaknesses , a comparison of the compet ition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the requ ired permits and licenses obtained. If
EAC 07 007 51107
Page 8
applicable, it should descr ibe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products . It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience . It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefore. Most importantly , the business plan must be credible.
[d.
The petitioner initially indicated that it anticipated hiring an initial staff of three to five employees, and
expected gross annual income of $100,000 or more during its first year of operations. In response to the
director's request for evidence, the petitioner indicated a minimum of eight employees subordinate to the
beneficiary and implied that these workers would be hired within the first year of operations. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
As the petitioner has provided no business plan , no hiring plan, and no financial projections indicating its
anticipated income and salary costs , the AAO is not in a position to determine whether the petitioner would
realistically support the proposed staff of eight employees, or even the staff of three to five employees
initially indicated on Form 1-129. While the petitioner's proposed organizational chart is impressive , the
record as presently constituted is insufficient to establish that it would be financially feasible for the petitioner
to hire eight or more employees within one year. The director should request a detailed business plan
outlining the company's hiring plan and timeline for hiring each employee, start-up costs, funding
requirements, sales, cost and income projections, for the first two years of operations, beginn ing in October
2006. The plan should document the anticipated volume of business, gross income predict ions and staffing
issues, and include the anticipated compensation levels for each of its proposed employees.
The record also does not identify the size of the financial investment in the United States entity or the
company's financial ability to commence doing business in the United States . See 8 C.F.R. §
214.2(1)(3)(v)(C)(3). There is no mention in the record of the amount of funds committed by the foreign
entity, nor is there any evidence that the U.S. company had received any funding at the time the petition was
filed. The petitioner should provide a clear description of its start up costs and funding requirements and
explain how these costs have been or will be met.
In addition, the record as presently constituted does not contain sufficient evidence to establish that the
beneficiary has been employed by the foreign entity in a managerial or executive capacity , as required by 8
C.F.R. § 214.2(l)(3)(v)(B) . The petitioner indicates that the beneficiary served as the fore ign entity's senior
marketing manager , responsible for "directing our marketing operations , activities and staff." No additional
description of the beneficiary's duties has been provided. The fore ign entity appears to employ eight workers ,
but the petitioner has not provided evidence of the organizational structure of the foreign entity , as required
by 8 C.F.R. § 214.2(1)(3)(v)(C)(3) . The director is therefore instructed to request a detailed description of the
EAC 07 007 51107
Page 9
beneficiary's duties while employed by the foreign entity, including a breakdown of the number of hours he
devoted to each duty on a weekly basis . The petitioner should also be requested to provide a complete
organizational chart for the foreign entity, along with detailed position descriptions for all of its employees.
The chart should clearly depict the beneficiary 's place within the organizational hierarchy and indicate the job
titles and duties of any and all ofhis subordinates, and indicate whether they are employed on a full-time or
part-time basis.
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 date the petition was filed.
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 addressingthe issues discussed above, and any other evidence he deems necessary.
ORDER: The decision of the director dated March 29, 2007 , is withdrawn. The matter is
remanded for further action and consideration consistent with the above discussion
and entry of a new decision.