remanded L-1A Case: Sporting Goods

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PUBL1CCOPY
identifyingdatadeletedto
preventclearly unwarranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rrn. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 06 098 52568 Office: VERMONT SERVICE CENTER Date: SEP 06 2007
INRE: 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. § 1101(a)(l5XL)
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.
~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 098 52568
Page 2
DISCUSSION: The Director, Vermont 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-IA nonimmigrant
intracompany transferee pursuant to section 1 01(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized in the State of New York that operates as
an importer and wholesaler of martial arts supplies, sporting goods and garments. It claims to be a subsidiary
of Exportman, located in Sialkot, Pakistan. The petitioner seeks to employ the beneficiary as the general
manager 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 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. § 214.2(1)(1)(ii)(F),
the director did not apply the regulations at 8 C.F.R. § 214.2(l)(3)(v) in adjudicating the petition. The director
based the decision primarily on the petitioner's staffing levels at the time of filing and concluded that the
beneficiary would be required to perform routine duties associated with operating the business.
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 objects to the director's reliance on the
petitioner's current staffing levels, noting that the company was only established in January 2006, has already
hired two employees, and has laid out its plans to hire additional staff within the first year of operations. The
petitioner asserts that the director's presumption that the beneficiary would perform primarily non-managerial
duties is incorrect.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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.
1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(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.
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EAC 06 098 52568
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(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(l)(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)(I)(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.
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. § 214.2(l)(I )(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 New
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EAC 06 098 52568
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York on January 26 , 2 006, less than one month prior to the filing of the petition . There is no evidence to
suggest that the petitioner has a parent , subsidiary or affiliate already doing business in the United States.
The petitioner clearly qualifies as a "new office," and therefore the instant petition should have been
adjudicated under the regulations pertaining to new office petitions at 8 C.F .R. § 214 .2(1)(3)(v). 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. § 214 .2(1)(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 e vidence 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. § 2l4.2(\)(3)(v) . 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 may be needed to satisfy the requirements
of 8 C.F.R. § 214.2(\)(3)(vXc), 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 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
petitioner intends to borrow $100,000 from its parent company to meet its capital requirements, but the
immediate availability of these funds has not been established , and there is no evidence that any monies have
been transferred from the foreign entity as an initial investment, or as payment for the issued stock . As the
petitioner claims that it has already commenced business operations in the United States and hired two
employees, it should be able to document that the U.S . company has been adequately financed. Without clear
evidence of how and when the company will be financed , it is difficult to make a determination regarding the
feasibility of the petitioner's business plan.
The petitioner has also outlined its proposed organizational structure for the first year of operations , and
indicated that it has already hired a manager and secretary. The petitioner states that it intends to hire a sales
manager, an "office staff," and commissioned sales agents /representatives within one year. Although the
petitioner indicates that two individuals were hired , no documentary evidence was submitted in support of this
claim. The petitioner also failed to provide position descriptions for its proposed sales manager, office staff,
and sales agent positions , nor did it identify the number of sales agents to be hired. Since the petitioner
intends to engage primarily in the import, marketing and sales activities, additional evidence is required to
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EAC 06 098 52568
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establish that the benefic iary will be relieved from routine duties associated with these functions within one
year.
Accordingly, the petitioner should provide evidence documenting the employment of the two individuals
hired at the time of filing, as well as a more detailed 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, jf 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 , April 18,
2006.
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 deemed necessary.
ORDER: The decision of the director dated April 18, 2006 is withdrawn. The matter is
remanded for further action and consideration consistent with the above discussion
and entry of a new decision.