dismissed L-1B Case: Arts And Antiques

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 07 115 50390 Office: VERMONT SERVICE CENTER Date: O('T 0 2 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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, Chief 
Administrative Appeals Office 
EAC 07 1 15 50390 
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 dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of president 
to open a new office in the United States as an L-1B nonimmigrant intracompany transferee with specialized 
knowledge pursuant to section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1 10 1 (a)(15)(L). The petitioner is a corporation established in the State of Oregon for the purpose of 
engaging in the wholesale of arts and antique furniture. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that it would be doing business as defined in 8 C.F.R. 8 214.2(1)(l)(ii)(H); and 2) the petitioner 
failed to establish that the beneficiary would be controlled by the petitioning U.S. employer. 
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 asserts that the director's decision is 
erroneous with regard to both grounds. A full discussion of counsel's arguments will be provided below. 
To establish eligibility for the L-1 nonimmigrant 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. 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 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. 
EAC 07 1 15 50390 
Page 3 
In addition, the regulation at 8 C.F.R. 9 214.2(1)(3)(vi) states that if the petition indicates that the beneficiary 
is coming to the United States to be open or be employed in a new office in a specialized knowledge capacity, 
the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The business entity in the United States is or will be a qualifying organization as defined in 
paragraph (l)(l)(ii)(G) of this section; and 
(C) 
 The petitioner has the financial ability to remunerate the beneficiary and to commence 
doing business in the United States. 
In the present matter, the first issue is whether the petitioner has established that it would be doing business, 
which is defined in 8 C.F.R. 214.2(1)(l)(ii)(H) as the regular, systematic, and continuous provision of goods 
andlor 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 or abroad. 
In support of the Form 1-129, the petitioner submitted a letter dated February 15, 2007, stating that the 
purpose of the U.S. branch office was to "promote Japanese arts and antiques, sell Japanese antiques and give 
lectures concerning Japanese arts and Nishiura Style in the United States." The petitioner also provided a 
photocopied rental lease and photographs of the interior of the leased premises. The petitioner claimed that it 
purposely leased a residential property in order to house the antiques in a home environment, where potential 
buyers could see the antique items on display and where such items would be more secure than they would be 
in a commercial property. 
On April 2, 2007, the director issued a request for additional evidence (WE) in light of various observations 
that were made during the course of examining the petitioner's record of proceeding. First, the director noted 
that the petitioner's antiques would be displayed in a residential rather than in a commercial area. Second, the 
director observed that the beneficiary would primarily reside in Japan and would make only occasional trips 
to the United States in order to provide arts lectures and to promote Japanese arts and Nishiura Style. In light 
of these observations, the director questioned how the petitioner would provide goods and/or services in a 
continuous manner at its new U.S. office. Accordingly, the director instructed the petitioner to provide a 
detailed description of the type of business to be conducted by the U.S. entity on a daily basis. The petitioner 
was asked to identify the products it intended to sell and to specify the location of established and prospective 
customers who would buy the petitioner's goods. The petitioner was also asked to discuss who would 
perform its daily tasks and to disclose whom it employed and the job descriptions of its employees, if any. 
In response, the petitioner provided a letter dated April 20, 2007 in which the petitioner clarified that the 
purpose of the U.S. branch office is to "promote Japanese arts and antiques, sell Japanese antiques and give 
lectures concerning Japanese arts and Nishiura Style in the United States." The petitioner also stated that its 
customers are primarily collectors and wholesalers, many of whom would be referred by , the 
owner of the petitioner's leased business premises. The petitioner speculated that other customers may be 
individuals who would attend the beneficiary's seminars and may be interested in knowing the Japanese arts. 
EAC 07 115 50390 
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The petitioner further explained that 
 is a collector of Japanese antiques and will therefore be 
charged with promoting and selling the petitioner's merchandise by meeting with p 
 ' clients and 
explaining the meaning and value of the antiques to be sold. The petitioner stated that 
 would be its 
only employee indefinitely until such time as the petitioner experiences sufficient expansion in its business. 
Additionally, the petitioner provided a business plan, which includes projections of the petitioner's activities 
from April 2007 until April 2008. The petitioner stated that from April until June 2007, it expected to inform 
clients of the beneficiary's transfer to the United States, set up a website and create product catalogues of the 
petitioner's merchandise, contact institutions that may be interested in sponsoring the beneficiary's seminars, 
and schedule the various seminars. From June to July 2007, the beneficiary planned to meet with existing and 
potential clients to gauge their interests and select additional items to be shipped fkom Japan to the United 
States. The petitioner clearly indicated that during the beneficiary's absences from the United States, Mr. 
would maintain the petitioner's merchandise and schedule the beneficiary's seminars with interested 
institutions. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
it would be engaged in the regular, systematic, and continuous provision of goods andlor services. The 
director therefore issued a denial dated May 17, 2007.' 
On appeal, counsel submits an appellate brief arguing that the petitioner would import and sell Japanese 
antiques and coordinate and manage the beneficiary's seminars, which constitute business activity. 
Upon review, counsel's assertions are not persuasive. 
In order to qualify for L-1 nonirnmigrant classification during the first year of operations, the regulations 
require the petitioner to submit documentation to establish its ability to remunerate the beneficiary and to 
commence doing business in the United States investment. See 8 C.F.R. 8 214.2(1)(3)(vi)(C). In the present 
matter, the petitioner has provided general information about the nature of the petitioner's business and has 
provided no specifics as to how it plans to attract clients to purchase its merchandise. Moreover, the 
petitioner specifically stated in its response to the RFE that its goal was to be selective in the type of clientele 
it would seek and that it was therefore expected that information about the petitioner's business would spread 
slowly. Although the petitioner indicated that some clientele would result from the beneficiary's anticipated 
lectures and seminars, no documentation was provided to establish sufficient interest in such lectures or to 
suggest that such lectures would occur frequently enough such that the petitioner could realistically expect to 
obtain sufficient buyers who would enable the petitioner to sell its goods on a regular, systematic, and 
continuous basis. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As the petitioner has 
1 
 The AAO notes for the record that counsel's appellate brief referred to the date of the director's decision as March 17, 
2007, rather than May 17,2007. This appears to have been a typographical error and will have no bearing on the AAO's 
decision in the present matter. 
EAC 07 1 15 50390 
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not provided sufficient documentation to establish that it would meet the definition of doing business under an 
approved petition, this petition cannot be approved. 
The second issue in this proceeding is whether the beneficiary would be controlled by the petitioning U.S. 
employer. The director observed that the beneficiary would not be primarily stationed at the worksite of the 
petitioning U.S. employer, which resulted in his ultimate finding that the petitioning employer would not 
control and supervise the work of the beneficiary. 
On appeal, counsel asserts that the beneficiary would give informal lectures and seminars, which are not part 
of the curriculum of the universities where the lectures and seminars would take place and students would not 
get university credits for attending these lectures and seminars. Counsel explains that the universities and 
cultural centers would merely serve as a venue for the seminars and lectures, which the beneficiary would use 
as a tool to advertise the petitioner's antiques and the Nishiura style. In support of counsel's assertions, the 
petitioner provides a copy of a flyer, which advertised one of the beneficiary's seminars. 
The AAO finds that counsel's explanation coupled with the advertising flyer are persuasive in determining 
that the beneficiary would not be controlled and supervised by an unaffiliated employer. Therefore, the 
second ground for the director's denial is hereby withdrawn. 
Notwithstanding the favorable finding above, the petitioner has failed to overcome the first ground for the 
director's denial. As such, this petition cannot be approved. 
Additionally, while not expressly addressed by the director, the record indicates that the petitioner failed to 
establish that the beneficiary's prospective position requires the employment of an individual possessing 
specialized knowledge. In part 5, item 10 of the Form 1-129, the petitioner indicated that the type of business 
it plans to operate is that of an arts and antique furniture wholesaler. The petitioner has also that 
the beneficiary would only occasionally travel to the United States and that in his absences, who 
owns the furniture that would be sold, would be responsible for showing the merchandise to potential clients. 
Although the petitioner claims that the beneficiary would give lectures and seminars in order to advertise the 
petitioner's merchandise, there is no indication that the primary portion of the beneficiary's time in the U.S. 
position would be spent giving lectures and seminars. Furthermore, the petitioner has not established that 
giving lectures and seminars in order to promote the petitioner's antiques involves and requires specialized 
knowledge. 
That being said, in examining the specialized knowledge capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties and the weight of the evidence supporting any asserted specialized 
knowledge. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner must submit a detailed job description of the services 
performed and to be performed sufficient to establish specialized knowledge. In the present matter, the petitioner 
has not established what the beneficiary would primarily do during his employment in the United States. Due 
to the petitioner's failure to provide this essential information, the AAO cannot conclude that the beneficiary's 
proposed employment with the U.S. entity would be in a capacity that involves and requires specialized 
knowledge. The petition may not be approved for this additional reason. 
EAC 07 115 50390 
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An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9' Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.