remanded L-1A Case: Oil And Gas

identifying data deleted to 
mvnt clearly unwarranted 
hvash of monal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
37 
File: SRC 04 233 53462 Office: TEXAS SERVICE CENTER Date: 
 JuL 1 8 2M16 
rN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1101(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. 
SRC 04 233 53462 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant 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 consideration 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 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Georgia and authorized to 
conduct business in Texas. It states that it ~rovides goods and services to the oil and gas industrv. It claims to 
" 
be an affiliate of The petitioner seeks to employ the beneficiary as 
the president of its new office in the United States for a three-year period. 
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. 
and foreign entities have a qualifying relationship. The director also found insufficient evidence to 
demonstrate that the petitioner had a valid lease for its office space. The director determined that the 
petitioner did not qualify as a "new office" as defined at 8 C.F.R. 9 214.2(1)(l)(ii)(F) and therefore did not 
apply the regulations at 8 C.F.R. $ 214.2(1)(3)(v) 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 contends that the director 
erred in determining that the petitioner does not qualify as a "new office." Counsel emphasizes that although 
the petitioner was incorporated in 1998 and has an active U.S. banking account, it has not commenced 
business operations in the United States. Counsel asserts that all issued stock certificates for the U.S. 
company have been submitted, contrary to the director's assumption that the petitioner must have issued stock 
prior to 2004. Finally, counsel contends that the lease agreement submitted in support of the petition was 
valid. Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimrnigrant 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)(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. 
SRC 04 233 53462 
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 hider 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. 9 214.2(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. 8 214.2(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 quali@ing organization in the United States and abroad. 
SRC 04 233 53462 
Page 4 
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 Georgia 
on February 25, 1998 and authorized to transact business in the State of Texas on May 25, 2004. The 
petitioner stated in its accompanying June 3, 2004 letter that the beneficiary would establish the petitioner's 
new office in Texas. The petitioner's supporting evidence included copies of the U.S. company's bank 
statements for the period January 2003 through April 2004. 
The director requested additional evidence on September 14,2004, advising the petitioner as follows: 
Although the beneficiary wishes to open a new office in Texas, this petition is not for a new 
office as contemplated in the regulations. The company . . . was incorporated in the United 
States in 1998 and as such must show that it can support a managerial or executive position as 
defined in the regulations. 
The director instructed the petitioner to submit, in part: (1) copies of its 2002 and 2003 IRS Forms 1120, U.S. 
Corporation Income Tax Return; (2) copies of 2003 Forms W-2 as evidence of employees; and (3) proof of 
business being conducted by the company in Georgia, including a copy of its business license. 
In a September 27, 2004 letter submitted in response to the director's request, the petitioner stated: 
[The petitioner] was chattered [sic] in 1998 to do business in the Oil and Gas supply industry. 
Circumstances changed and we decided to postpone the opening of our new office. 
The company is currently preparing to open a new office and commence business in Houston, 
Texas. However, the company never has engaged in business from its incorporation to date. 
The company has never had employees and has never filed Federal income tax returns. 
The company has never had an office, other than its recently acquired office space in 
Houston, Texas. 
In summary, the company has existed only "on paper" from its inception until present time. 
Counsel for the petitioner explained that the U.S. company was unable to provide much of the requested 
documentation and stated that the company qualified as a new office as defined at 8 C.F.R. 
214.2(1)(l)(ii)(F), as it had not yet begun to do business in the United States. 
The director denied the petition on November 8, 2004. The director acknowledged the petitioner's statements 
that the company had not yet commenced business operations, but noted that the company submitted bank 
statements dating from January 2003, showing that the company had an active business checking account. 
The director concluded: "Obviously the company is doing business, even if it is not selling goods or services. 
While no determination can be made on what business is being conducted, it is clear that the company cannot 
be found to qualify as a new office." The director therefore did not apply the regulations applying to new 
office petitions when determining that the beneficiary would not be employed in a managerial or executive 
capacity in the United States, noting that "the U.S. company has been in business since 1998 but still does not 
have a subordinate staff of professional, managerial or supervisory personnel to relive the beneficiary from 
performing non-qualifying duties." 
SRC 04 233 53462 
Page 5 
On appeal, counsel for the petitioner asserts that the petitioner has not commenced doing business in the 
United States and therefore qualifies as a new office for L-1 purposes. Counsel contends that the director 
"willfully disregarded the regulations" and disregarded the petitioner's September 27, 2004 letter. Counsel 
further asserts: 
In our view, a company's possession and use of a bank account cannot be construed as "doing 
business" as that term is defined by the regulation noted above. The applicable test of a 
company's doing business for L-1 purposes is whether or not the entity in question has 
provided goods and/or services to its clients or customers. . . . And as the [director] concedes 
that the petitioner is not providing goods and/or services to the public, he must conclude, as a 
matter of law, that the petitioner is not doing business as that term is defined by the 
applicable regulation, and that the petitioner's office is a new office situation, as that tenn is 
defined by the regulation cited above. 
Upon review, the AAO concurs with counsel's assertions and will withdraw the director's November 8,2004 
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. 3 214.2(1)(l)(ii)(F). Contrary to the director's determination, the possession of an 
active checking account, without more, does not serve as prima facie evidence that a petitioner is doing 
business as that term is defined at 8 C.F.R. 5 214.2(1)(l)(ii)(G). The director's conclusion that the company is 
doing business, "even if not selling goods or services," is contrary to the regulatory definition. 
The AAO therefore concludes 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)(~). 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 CIS 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 in accordance with the following discussion. 
The record as presently constituted does not contain sufficient evidence to establish that the beneficiary would 
be employed in a primarily managerial or executive capacity within one year of the approval of the petition. 8 
C.F.R. 5 214.2(1)(3)(v)(C). The petitioner provided only a vague position description for the beneficiary that 
SRC 04 233 53462 
Page 6 
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 United 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), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner should be instructed to submit a comprehensive description of the beneficiary's proposed 
duties, including the percentage of time he will devote 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 of approval of the petition, the petitioner is required to 
submit evidence regarding the proposed nature 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.F.R. $5 214.2(1)(3)(v)(C)(2) and (3). 
The record contains no description of the type of business to be operated by the petitioner, no business plan 
outlining the proposed scope, nature and objectives of the organization, no evidence regarding the types of 
positions to be filled during the first year of operation, and no evidence of the size of the investment in the 
U.S. company. The director is instructed to request further evidence to establish that the beneficiary will be 
employed in a primarily managerial or executive position by the end of the first year of operations. The 
petitioner should provide a business plan providing specific dates for each proposed action for the next two 
years, beginning with the filing date of this petition. The business plan should document the anticipated 
volume of business, gross income predictions and staffing issues. 
If not included in the business plan, the petitioner should provide a 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 and operational functions, including, if applicable, market research, 
marketing, advertising, purchasing, sales, customer service, administrative and clerical tasks and any other 
functions inherent to the type of business to be operated by the petitioner. 
In addition, the record as presently constituted contains no evidence regarding the petitioner's financial goals. 
There is also no evidence of the size of the United States investment, nor evidence that the company's 
shareholders had actually transferred any monies to the petitioner as of the date of filing. See 8 C.F.R. 3 
214.2(1)(3)(v)(C)(2). Again, the director is instructed to request additional evidence to provide the petitioner 
with an opportunity to address these deficiencies. 
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. 3 214.2(1)(3)(v)(A). The record contains a twenty-seven page master lease 
agreement between and two versions of a one-page 
SRC 04 233 53462 
Page 7 
sub-lease agreement betwee-nd the petitioning company. The sub-lease agreement submitted 
with the initial petition is dated August 1, 2004 and indicates at clause three: "The period of this sublease will 
be a period of one (1) year unless the lease period is extended." The sub-lease agreement submitted in 
response to the director's request for evidence is nearly identical, but indicates at clause three: "The period of 
this sublease will be a period of one (1) year commencing from August 1, 2004 to July 3, 2005 unless the 
lease period is extended." Both documents refer to the petitioner's premises as "a space of approximately 300 
sq ft for commercial use only." 
The director noted that the petitioner submitted two different versions of the sub-lease agreement, and further 
found that the petitioner had failed to submit evidence that the sub-lessor had permission from the landlord to 
sublet space to the petitioner as required under the master lease agreement. The director concluded that the 
petitioner did not have a valid lease. 
On appeal, counsel for the petitioner asserts that only one lease agreement was submitted by the petitioner. 
Counsel states that the lease between the sublessor and the petitioner remains in effect, explaining as follows: 
While it is true that the sublessor is forbidden from subletting any of its premises without the 
Landlord's permission, there is nothing in the lease which renders the sublease void fiom it 
inception. Rather the sublease is voidable if the Landlord chooses to exercise any of its 
remedies described in Article 20. Unless and until one or more of those remedies is used 
against the sublessor, the lease between and the petitioner remains a valid 
lease. 
(Emphasis in original.) 
Counsel resubmits the master lease agreement and sub-lease agreement that were submitted in response to the 
request for evidence. 
The record as presently constituted does not demonstrate that the petitioner has acquired sufficient physical 
premises to house its new office. The petitioner has not described the type of business it intends to operate, or 
its anticipated space requirements for its business, therefore, even if the AAO accepted that the petitioner has 
a valid sub-lease agreement, it is not possible to conclude that 300 square feet of "commercial space" is 
sufficient for the petitioner to operate its business during the first year of operations. Although the sub-lease 
agreement was to be valid for a one-year period, it appears based on counsel's representations that the master 
lessor could take action to terminate the agreement at any time. In addition, the petitioner has not provided an 
explanation regarding the existence of two versions of the same sub-lease agreement. 
To correct the deficiencies in the record, the petitioner should describe its anticipated space requirements and 
submit secondary evidence to establish that it was leasing the claimed office space at the time of filing, such 
as evidence of payments to the sublessor, photographs, and statements from the sublessor and its landlord 
confirming the petitioner's use of the office space. 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. 
SRC 04 233 53462 
Page 8 
The director also addressed the issue of whether the petitioner and the foreign entity have a qualifying 
relationship as required by 8 C.F.R. 5 214.2(1)(3)(i). The petitioner claims that it is an affiliate of the foreign 
entity, Lahor Limited, based on common majority ownership by the beneficiary, who is stated to own 
approximately 84 percent of each company. 
As evidence of the U.S. company's ownership, the record includes the petitioner's Georgia articles of 
incorporation dated February 25, 1998, authorizing the issuance of 500,000 shares of stock; a May 25, 2004 
certificate of authority to conduct transaction in Texas; copies of the petitioner's stock certificates numbers 
one through five, all of which are dated June 23, 2004; and the petitioner's stock transfer ledger. The stock 
certificates and transfer ledger indicate that 420,000 of the company's 500,000 shares have been issued to the 
beneficiary. 
As evidence of the foreign company's ownership, the petitioner submitted the company's certificate of 
incorporation and its memorandum and articles of association. The memorandum of association indicates that 
the share capital of the company is divided into 50,000,000 shares, and includes a list of shareholders. The 
A - 
shareholder list shows that 
 ' owns 30,000,000 shares, the beneficiary is the 
second largest shareholder 
 emainder of the shares is divided between fifteen 
individuals. The petitioner also submitted what appears to be a statement of accounts for the year ended 
December 31, 2003. This document includes a list of the company directors and their interests in the 
company. The list indicates that the beneficiary owns a direct interest of 37,073 and an "indirect" interest of 
17,607; A- 
owns 22,222 shares, an 
 - 
es. The statement contains 
the following note: "The indirect Shares of 23 million ordinary shares of one each are held by 
, in whic- [the beneficiary] is the majority 
shareholder." The petitioner submitted copies of its stock certificates numbers and 
stock certificates number for 28,04,277 shares was issued to the beneficiary on March 23, 2000. 
The other four stock certificates were issued to the four "directors" identified above and totaled 5,302,000 
shares. 
Although the petitioner initially submitted its stock ledger and copies of five stock certificates in support of 
the petition, the director requested copies of these documents in his September 14,2004 request for evidence, 
noting that it appeared that the company had recently authorized a "new issuance of stock." In an October 26, 
2004 response, counsel asserted that the petitioner had only one issuance of stock and resubmitted copies of 
the five stock certificates issued on June 23,2004. 
Upon review of the petitioner's response to the request for evidence, the director concluded: 
[I]t appears you have failed to fully document the ownership of the U.S. company. In the 
request for evidence you were asked to submit a copy of the original stock certificates and the 
ledger. In return you have stated that the certificates issued in 2004 are the original and only 
certificates issued by the corporation. It is not clear that no stock was issued in 1998 and the 
copies of the 2004 stock certificates, as submitted with the original petition, were unsigned 
and invalid at the time of filing this petition. This failure to document the complete history of 
SRC 04 233 53462 
Page 9 
shares issued makes it impossible to determine the true relationship between the U.S. and 
foreign company. 
On appeal, counsel asserts that the director erred by continuing to question whether the petitioner issued stock 
in 1998 when the petitioner's evidence shows that the only stock issuance occurred in 2004. Counsel asserts 
that the petitioner submitted sufficient evidence to establish the existence of a qualifying affiliate relationship 
between the U.S. and foreign entities. 
Upon review, the AAO concurs with counsel that the director's analysis of this issue was flawed and based on 
speculation. However, the evidence of record is insufficient to establish the claimed affiliate relationship 
between the U.S. and foreign entities. The petitioner has not sufficiently documented the ownership and 
control of the foreign entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner has submitted a complete list of the foreign entity's owners as of September 1997, a partial list 
of owners as of 2003, and copies of five stock certificates issued in 2000. Based on this limited evidence, it is 
impossible to determine the foreign entity's actual ownership as of the date the petition was filed. The 
director should instruct the petitioner to submit copies of all stock certificates issued by the foreign entity, 
including voided certificates, as well as its the company's stock ledger or stock transfer register. The 
petitioner should also submit any other relevant corporate documents from the foreign entity referencing 
changes in ownership, issuance of stock, and transfer of stock from one shareholder to another. In addition, 
the petitioner should provide evidence of the ownership o if it is claiming 
that the beneficiary owns a portion of the foreign entity's shares indirectly through this company. 
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 
SRC 04 233 53462 
Page 10 
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, August 3 1, 
2004. 
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 she deems necessary. 
ORDER: 
 The decision of the director dated November 8, 2004 is withdrawn. The matter is remanded 
for further action and consideration consistent with the above discussion and entry of a new 
decision.