sustained L-1A Case: Wholesale Of Electrical Appliances

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 05 221 50242 Office: CALIFORNIA SERVICE CENTER Date: 
 El3 1 9 2008 
PETITION: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 1 0 1 (a)( 1 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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 fiuther inquiry must be made to that office. 
Pobert P. Wiemann, hief 
w 
@ 
dministrative Appeals Office 
WAC 05 221 50242 
Page 2 
DISCUSSION: The Director, California Service Center, initially approved the nonimmigrant visa petition. 
Upon subsequent review, the director issued a notice of intent to revoke approval and ultimately revoked 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be sustained. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $j 1 101(a)(15)(L). The petitioner, a California corporation, states that it is engaged in the wholesale of 
electrical appliances. The petitioner claims to be an affiliate of Shenzhen Huali Science & Technology 
Development Co., Ltd., located in China. The petitioner seeks to employ the beneficiary as its general 
manager for a three-year period. 
The petitioner filed the nonimmigrant petition on August 8,2005 and it was approved on August 15,2005 for 
a three-year period commencing on September 15, 2005. On February 22, 2007, the director issued a notice 
of intent to revoke the approval, noting that the petition had been returned to U.S. Citizenship and 
Immigration Services (USCIS) by the U.S. Consulate in Shanghai. The director advised the petitioner that 
questions were raised by the Consulate as to whether the U.S. company has been doing business as required in 
the regulations. The director instructed the petitioner to submit additional evidence or arguments in rebuttal 
of the issues raised in the notice of intent to revoke. The petitioner submitted rebuttal evidence on March 20, 
2007. 
The director revoked the approval of the petition on March 29, 2007, concluding that the petitioner had not 
established that the U.S. company has been doing business as required in the regulations. Specifically, the 
director found that the petitioner had failed to establish that it had physical premises fiom which to conduct 
business. 
The petitioner subsequently filed an appeal. On appeal, counsel for the petitioner asserts that the director 
ignored and failed to consider "abundant evidence that established beyond any doubt that the L1 visa should 
not have been revoked." Counsel asserts that the evidence submitted shows that the U.S. company does 
substantial business in the United States, has leased business premises, and pays rent on the leased premises. 
Counsel Wher contends that the director's decision contains misstatements of fact and penalizes the 
petitioner for failing to submit evidence and information that USCIS never requested. Counsel submits a brief 
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 1 (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. 
WAC 05 221 50242 
Page 3 
Under CIS regulations, the approval of an L-1A petition may be revoked on notice under six specific 
circumstances. 8 C.F.R. 5 214.2(1)(9)(iii)(A). To properly revoke the approval of a petition, the director must 
issue a notice of intent to revoke that contains a detailed statement of the grounds for the revocation and the 
time period allowed for rebuttal. 8 C.F.R. 5 214.2(1)(9)(iii)(B). 
In the present matter, the director provided a detailed statement of the grounds for the revocation but 
incorrectly referenced the regulation at 8 C.F.R. tj 214.2(h)(l l)(iii), rather than the regulations governing the 
revocation of intracompany transferee petitions. Upon review, the director revoked the approval on the basis 
of 8 C.F.R. 5 2 14.2(1)(9)(iii)(A)(4): "The statement of facts contained in the petition was not true and correct." 
Upon review, and for the reasons discussed herein, the AAO will withdraw the director's decision revoking 
the approval of the petition and sustain the petitioner's appeal. The petition will be approved. 
The regulation at 8 C.F.R. 5 214.2(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. 
(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 whch the alien performed abroad. 
The issue in this matter is whether the petitioner established that the U.S. company is a qualifying 
organization doing business in the United States. 
The pertinent regulations at 8 C.F.R. 9 2 1 4.2(1)(1 )(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfiing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
WAC 05 221 50242 
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(I) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the duration of the alien's 
stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(H) 
 Doing business means 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 qualifjring organization in the United States or abroad. 
The petitioner filed the nonimrnigrant petition on August 8, 2005 and it was approved on August 15, 2005. 
The beneficiary was subsequently interviewed in connection with his application for an L-1 visa at the U.S. 
Consulate in Shanghai, China. The U.S. Consulate reviewed the file and returned the petition to the director 
for further review and possible revocation. 
The director advised the petitioner of the U.S. Consulate's findings and concerns in a notice of intent to 
revoke dated February 22,2007. The notice quoted verbatim portions of the U. S. Consulate's letter, and noted 
in part the following: 
[Tlhe applicant has not provided adequate proof that an actual U.S. office exists. We are 
unable to confirm that the petitioner has secure[d] sufficient physical presence/premises to 
house the company, per 9 FAM 41.54 N12.3. It appears that all lease[s] have been signed 
only by friends, or [the petitioner] is merely sharing space with another company. There is no 
evidence that [the petitioner] is directly paying rent on any actual office space. 
It was noted that no direct employee of the U.S. company had si ed an lease agreement, and that one 
address included in the petition filing was a private residence of a 
dim 
whose connection to the U.S. 
company was uncertain, and whose name and address were associated with another, apparently un-related L-1 
petition. It was also noted in the Consulate's letter that one of the petitioner's leased premises appeared to be 
shared with another unaffiliated company, 
The director advised the petitioner that, based on the information contained in the U. S. Consulate's letter, it 
had "failed to submit convincing evidence to establish that the company had been engaged in business in a 
regular and systematic fashion that include the physical premises." The director further advised that this 
conclusion was based on the petitioner's failure to show that it leased the place of business and the fact that it 
was sharing office space with another company. 
WAC 05 221 50242 
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The director advised the petitioner that it had 30 days in which to submit additional evidence before USCIS 
would make a final decision regarding revocation of the petition approval. 
The petitioner, through counsel, submitted a rebuttal dated March 16, 2007, in which it sought to clarify the 
company's lease arrangements and other questions raised in the notice of intent to revoke. Counsel explained 
that is the petitioner's corporate secretary and a close friend of one of the petitioner's executives. 
Counsel noted that at the time the company was formed, and for several years thereafter, residential 
address was utilized as an official mailing address for the petitioning company. The petitioner attached 
documentation identifying as the company secretary and contact person as of 1999 when the company 
was incorporated. Counsel further clarified that 
 had assisted another friend in the same manner, 
which is why his name and address are connected to an unrelated company. 
With respect to the petitioner's lease agreements, counsel stated that 
 assisted the petitioner by signing 
the lease for the company's premises located at 
 a Puente, California because the 
landlord required the lease to be 
 The petitioner provided a cover letter from the 
property manager confirming that 
 " was leasing the property through June 2006, as 
well as copies of invoices for 
 checks used to pay rent for thls location, 
photographs of the premises, and utility bills for the location, issued to the petitioning company. 
Counsel explained that the etitioner's warehouse facility located at in City of Industry, 
California is shared wit a. Counsel stated that the petitioner pays its half of the rent in goods 
supplied to me petitioner submitted a letter from the president of, who identified the 
petitioner as his company's supplier. He stated that the petitioner paid $6,340.50 in rent in 2004, and $8,454 in 
2005. The petitioner provided a copy of the lease agreement and e-mail correspondence confirming the 
sublease arrangement and its approval by landlord. 
The director revoked approval of the petition on March 29, 2007, concluding that the evidence submitted in 
rebuttal to the notice of intent to revoke was insufficient to overcome the proposed grounds for revocation. 
The decision contained little discussion of the evidence and explanation submitted in rebuttal to the notice of 
intent to revoke. The director questioned the validity of an e-mail message submitted to establish that Broada 
Inc.'s landlord has approved the space-sharing arrangement with the petitioning company. Specifically, the 
director thought the e-mail was suspicious due to the appearance of two different fonts within the two 
different messages. The director Wher stated: 
Finally, the information presented by the petitioner's counsel makes it impossible to 
determine if it has enough square footage for a sufficient premises to conduct business. 
Moreover, the e-mail submitted is over 2 years old and fails to establish the petitioner['s] 
current lease arrangements. Further it is not clear as to why the petitioner did not summit [sic] 
all these documents in the original petition. In conclusion, the petitioner presented no 
evidence from property managers showing that the petitioner continue[d] to lease premises in 
the United States. 
WAC 05 221 50242 
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On appeal, counsel asserts that the director's decision is based on multiple erroneous statements of fact and 
ignores abundant evidence that the petitioner leases two premises, pays rent for those premises, and conducts 
substantial business in the United States. Counsel contends that the consular officer's conclusion that the 
petitioner does not have an office in the United States was based upon "faulty inferences drawn from 
irrelevant facts. " 
Counsel reviews the issues raised in the notice of intent to revoke and the petitioner's responses thereto, 
noting that the petitioner's explanations were reasonable and accompanied by evidence that the petitioner does 
in fact pay rent for its own office and warehouse facility and another warehouse facility shared with another 
company. Counsel contends that the director ignored the evidence submitted and instead emphasized some 
perceived font irregularities in an e-mail which counsel states "amounts to unacceptable and unwarranted 
nitpichng." Finally, counsel notes that the decision inappropriately "complains of a failure to provide 
information concerning business operations outside the time period when the petition was filed," and which 
was never requested by USCIS. 
Upon review, counsel's assertions are persuasive. The petitioner has established that it has been doing 
business in the United States as required by the regulations. Accordingly, the director's decision dated March 
29,2007 will be withdrawn and the petition will be approved. 
The director's singular focus on the perceived irregularities in the petitioner's lease agreements, to the 
exclusion of all other evidence in the record showing that the U.S. company is an active business, was 
misplaced. At the time the petition was filed, the petitioner submitted the following: (1) a copy of its 2004 
IRS Form 1 120, U.S. Corporation Income Tax Return, date stamped as timely submitted to the IRS, and 
showing gross receipts of $1.2 million and rent payments in excess of $10,000; (2) copies of state and federal 
wage reports showing payments to employees from January 2004 through June 2005; (3) copies of 2004 IRS 
Forms W-2; (4) bank statements; (5) utility bills showing payments for service at the beneficiary's proposed 
worksite; (6) copies of leases, letters from landlords, and rent invoices; (7) invoices and customs 
documentation for the U.S. company dating from 2003 through 2005; and (8) color photographs of the 
petitioner's premises. Based on this extensive evidence, the director's initial approval of the petition was 
warranted. The evidence submitted showed a small but growing company conducting substantial business in 
the United States. 
Furthermore, the AAO finds the petitioner's explanations regarding its lease agreements to be credible. The 
- - - 
petitioner has adequately explained 
 association with the company and the reason his name appears 
on the lease agreement. With respect to the shared premises with , the director's comments 
regarding perceived font irregularities in a photocopy of an e-mail message were unsupportable. The AAO 
can find no valid basis to doubt the authenticity of the e-mail message in question. The director's decision 
otherwise identifies no legitimate basis for the revocation of the petition approval. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g,, Spencer Enterprises Inc. v. US., 345 F.3d 683, 694 (9th Cir., 2003). 
A review of the totality of the record establishes that the petitioner had been actively doing business in the 
United States as defined in the regulations at the time the petition was filed. While the petitioner's lease 
WAC 05 221 50242 
Page 7 
arrangements may be characterized as unconventional, overall, the evidence submitted supports the 
petitioner's claim that it is actively engaged in the import and wholesale of lighting appliances and other 
electronic goods, and that it does in fact have physical premises fiom which to conduct this business. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has been met. Accordingly, the 
director's decision dated March 29,2007 is withdrawn. 
ORDER: The appeal is sustained.