remanded L-1A Case: Manufacturing And Import/Export

identifiing data deleted to 
prevent clearly unwarranted 
invasion of perconal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
File: WAC 09 026 5 13 19 
 Office: CALIFORNIA SERVICE CENTER 
 Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 10 1 (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. 
wn F. Grissom 
Acting Chief, Administrative Appeals Office 
WAC 09 026 51319 
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 I0 1 (a)(] 5)(L) of the Immigration and Nationality Act (the Act), 8 
U .S.C. $ 1 10 1 (a)(15)(L). The petitioner, a California corporation, intends to operate as a manufacturing and 
importlexport company. It claims to be a subsidiary of Dong Yang CMI, Inc., located in Seoul, Korea. The 
petitioner seeks to employ the beneficiary as president of its new office in the United States for a period of 
one year. 
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 
indicated that it qualifies as a "new office" as defined at 8 C.F.R. $ 214.2(1)(l)(ii)(F), the director did not 
apply the applicable regulations at 8 C.F.R. $ 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 asserts that the director 
failed to consider the petitioner's status as a new office, and thus erred by requiring the petitioner to 
demonstrate that the beneficiary would immediately carry out primarily managerial or executive duties upon 
approval of the petition. Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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. 9 214.2(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. 
(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. 
WAC0902651319 
Page 3 
(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 (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(2) 
 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 threshold issue, 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)(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. 5 214.2(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 filed the Form 1-129, Petition for a Nonimmigrant Worker, on November 6, 2008, and 
indicated on the petition 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 California on May 24, 
2007. In a letter submitted in support of the petition, the foreign entity's chairman and chief executive officer 
stated: 
, WAC0902651319 
Page 4 
[The petitioning company] in USA was established originally in 2007 by Dong Yang CMI, 
Inc. in South Korea but there was no significant operation except for maintaining the status of 
U.S. corporation until we recently decided to initiate the operations. . . . 
The petitioner submitted a copy of its commercial lease agreement, which has a commencement date of 
September 8, 2008, and submitted evidence in the form of wire transfer receipts for funds transferred from the 
foreign entity beginning in July 2008. The petitioner also submitted a business plan indicating that 2008 will 
be the company's first year of operation. 
On appeal, the petitioner also submits a copy of its IRS Form 1120, U.S. Corporation Income Tax Return, 
which indicates that the petitioner reported no assets, receipts or expenses for the 2007 fiscal year. 
Based on the evidence of record, the petitioner has established that 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)(~). There is no 
evidence to suggest that the petitioner had been doing business for more than one year at the time the petition 
was filed. 
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 (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. 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. Accordingly, the 
director's decision will be withdrawn. 
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 sufficient size to 
employ the beneficiary in a primarily managerial or executive capacity within one year of the approval of the 
petition. 
The record as presently constituted contains no detailed description of the beneficiary's proposed duties as 
president of the U.S. company, and no indication of what duties he would be expected to perform at the end 
, ~~C0902651319 
Page 5 
of the first year of operations. The petitioner merely indicated that the beneficiary will "assure that the U.S. 
company undergoes a successful commencement of operation and gets established in a sound financial 
footing with an adequate client base." Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's proposed activities in 
the course of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
Accordingly, the director is instructed to request a comprehensive description of the beneficiary's specific 
proposed duties and the approximate percentage of time the beneficiary will allocate to each of these duties. 
The petitioner has also failed to outline its proposed organizational structure for the first year of operations. 
Rather, the petitioner has simply stated that the petitioner has hired one manager and is "expecting to employ 
more workers" within one year. The petitioner should be instructed to: identify all positions it has filled or 
intends to fill during the first year of operations and provide a timeline for hiring any additional workers; 
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. 
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, November 6, 
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 19, 2008 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision.