dismissed L-1B Case: Automotive Engineering

U.S. Department of Homelr~nd Security 
20 Mass. N.W.. Rm. A3042 
p4i&M'$:lnp tl .. dab ash~ngton. DC 20529 
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bv&ol? of persod P~=Y 
U.S. Citizenship 
and Immigration 
COPY 
FEB 23m 
FILE: LIN 03 249 51813 Office: NEBRASKA SERVICE CENTERDate: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. # 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
P. Wiemann, ~irectbr 
Appeals Office 
LIN 03 249 51813 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a new U.S. office incorporated in the State of Michigan, which provides design services of 
resin-based automotive components to automaker clients. The petitioner claims that it is a wholly-owned 
subsidiary of IT0 Co. Ltd., located in Japan. It seeks to temporarily employ the beneficiary as an automotive 
components design engineer. Accordingly, the petitioner endeavors to classify the beneficiary as an L-I B 
specialized knowledge nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. # 1 101(a)(15)(L). 
On September 10, 2003, the director denied the petition, concluding that (1) the evidence does rlot clearly 
establish that the petitioner has obtained sufficient physical premises to house the new ofice, and (2) there is 
no evidence that the petitioner has at that time the financial ability to remunerate the beneficiary and 
commence doing business in the United States. 
On appeal, counsel for the petitioner asserts that sufficient premises have been secured for the psetitioner's 
start-up staff. Counsel also asserts that the petitioner has the financial ability to conduct business in the U.S. 
and remunerate the beneficiary through the parent company. Counsel submits additional evidence in support 
of these assertions. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 
8 U.S.C. $ 1 101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. 
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)(iv) states that if the petition indicates that the beneficiary is coming 
to the United States in a specialized knowledge capacity to open or be en~ployed in a new office, 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 (I)(l)(ii)(G) of this section; and 
(C) the petitioner has the ability to remunerate the beneficiary and to commence doing business 
in the United states. 
The first issue in this proceeding is whether the petitioner has secured sufficient phys~cal premises to house 
the new ofice. 
As the director noted, in the initial submission, the petitioner indicated that it has entered into an oflice lease, 
but did not provide a copy of the lease or any other evidence relating to premises for the new oiffice. On 
LIN 03 249 51813 
Page 3 
August 26, 2003. the director requested further evidence that sufficient premises have been secured to house 
the new ofice. In response, counsel for the petitioner submitted (1) a copy of an office lease between the 
Northwestern Mutual Life Insurance Company as landlord and Nagase Plastics America Corporation as 
tenant for the building a, (2) a copy of a sublease between 
Nagase Plastics America Corporation as sublessor and the petitioner as sublessee for suit-of that 
building, for the period from May 1, 2003 through May I, 2004; and (3) a copy of a consent to sublease by 
the Northwestern Mutual Life Insurance Company. The sublease indicates that the premise to be sublet to the 
petitioner consists of 250 square feet of space. 
The director determined that, as the petitioner states that the office will initially be staffed by three engineers 
as well as locally hired administrative and support staff, it does not seem likely that the 250 square feet of 
space is sufficient, since it would not allow for adequate workspace for that many employees. Therefore, the 
director found, the evidence does not clearly establish that the petitioner has obtained sufficien~t physical 
premises to house the new office. 
On appeal, counsel asserts that the space was sufficient for the company's inznlediate staffing needs, which 
counsel maintains consist of only the three engineers. Counsel further asserts that company's business plan 
shows that the hiring of additional personnel beyond the first three engineers would be completed in June 
2005. Moreover, counsel states, based upon the petitioner's business relationship with the suble:isor, more 
space will be made available as needed. In support of these assertions, counsel submitted additional 
evidence, including a floor plan of the sublet space and letter from the designer; all excerpt from the 
company's previously submitted business plan describing projections for hiring of staff; and a letter from the 
sublessor confirming that more space will be made available as needed. 
The AAO will not consider the additional evidence submitted by counsel for the first time on appeal. The 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated. Therefore, the AAO will not consider the floor plan of the 
office space in question, or the letter from the sublessor, as both were submitted for the first time on appeal. 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). 
Based on the record of proceeding before the director, the AAO agrees with the director that the evidence is 
insufficient to support a conclusion that the petitioner has secured sufficient premises to house the new oflice. 
Counsel submits that the Citizenship and Immigration Services (CIS) "misinterpreted the business plan . . . 
believing that an administrative and support staff would be hired at the same time as the 3 enginelzrs rather 
than 1 year later." However, the AAO notes that in the letter dated August 4, 2003 accompanying the 
petition, the petitioner states, "The company will be staffed in the fourth quarter of 2003, initially by three 
experienced [engineers] and a locally hired adnlinistrutive and support stuf' (emphasis added). PYloreover, 
the excerpt setting forth the company's business plan from the same letter, which counsel resubmits on 
appeal, indicates that during the period from January through March 2004, the petitioner intends to "actively 
recruit local managerial staff members, including general manager and business development manager." 
The petitioner also states, one page later, that "[bly January 2004 the hiring of managerial and business 
development personnel will be underway and completed within 3 months." All of these statement's indicate 
that the petitioner plans to expand its staff considerably during the one-year lease of the 250-square-feet 
LIN03 24951813 
Page 4 
space, which counsel himself represents as suitable for only the three engineers. In the absence of'any other 
evidence that the petitioner has actually secured additional space for the staff it plans to hire during that 
year, the AAO finds the director properly concluded that the petitioner has not established that sufficient 
physical premises to house the new office have been secured at the time the petition was filed, ancl therefore 
has failed to meet the requirement set forth in 8 C.F.R. $ 214.2(1)(3)(iv)(A). 
The remaining issue In this proceeding is whether the petitioner currently has the financial ability to 
remunerate the beneficiary and commence doing business in the United States. 
Along with the initial petition, the petitioner submitted its IRS Form 1120, U.S. Corporation Income Tax 
Return, for 2002, which indicates that the company's assets total $50,000. Based on a subscription 
agreement submitted at the same time, that amount appears to reflect the purchase of 50 shares cf common 
stock of the company, at the price of $1,000 per share, by the foreign entity. The petitioner submitted no other 
information relating to its financial status. On August 26, 2003, the director requested further evidence that 
the petitioner has the financial ability to remunerate the beneficiary and to commence doing busiriess in the 
United States. 
In a letter responding to the request, counsel states that the petitioner has the ability to remunerate the 
beneficiary through the foreign entity. Counsel submitted the balance sheet and income statement of the 
foreign entity for the fiscal year from April I, 2001 to March 3 1,2002. These documents reveal no 1 ransfer of 
finds from the foreign entity to the U.S. entity, nor was any other evidence relating to any such transfer 
provided. 
The director noted that the petition was filed seventeen months after the end of the fiscal year discussed in the 
financial statements submitted. Therefore, the director also denied the petition on the grounds that there is 
no evidence of the current financial status of either the petitioner or the foreign entity and no evidence that 
the petitioner currently has the financial ability to remunerate the beneficiary and commence doing business 
in the United States. 
On appeal, counsel reiterates that the petitioner, through the parent company, has the ability to remunerate 
the beneficiary and conduct business in the U.S. Counsel concedes that the financial statement submitted in 
response to the director's request for further evidence was not sufficiently current to provide satisfactory 
evidence of financial viability. Counsel submits on appeal the financial statement of the foreign entity for the 
fiscal year from April 2002 through March 2003. 
As previously noted, the petitioner was put on notice of required evidence and given a reasonable opportunity 
to provide it for the record before the visa petition was adjudicated. Counsel gave no explanation as to why 
the additional evidence could not have been made available prior to the adjudication of the petition. 
Therefore, the AAO will not consider additional evidence submitted by counsel on appeal, and the appeal will 
be adjudicated based on the record of proceeding before the director. See Matter of Soriano, 19 I&N Dec. at 
764. As previously noted, a failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. See 8 C.F.R. 5 103.2(b)(14). Moreover, even if the more current 
financial statement of the foreign entity submitted on appeal were to be considered. the AAO notes that there 
is no indication in that document of any transfer of funds from the foreign entity to the U.S. entity for any 
purpose. 
LIN0324951813 
Page 5 
Based on the foregoing, the AAO agrees with the director's conclusion that the petitioner has not provided 
adequate documentation to establish that the U.S. entity has the financial ability to remunerate the 
beneficiary and commence doing business in the United States. The petitioner had indicated that the 
beneficiary would be remunerated at the rate of $75,000 per year. Based on the lease, the rent for the ofice 
space is $500 per month. Even without taking into account other operation costs that the petitioner has not 
enumerated in the petit~on and accompanying documentation, the U.S. entity's total assets of $50,000 is 
clearly insufficient for the beneficiary's salary and the cost of commencing business during the first start-up 
year. While counsel claims that the U.S. entity would be able to meet such financial requirement through the 
foreign entity, the record contains no evidence that the foreign entity has provided or would be providing 
necessary funding to the U.S. entity for such purpose. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). As such, the AAO finds that the director 
properly concluded that the petitioner has failed to meet the requirement set forth in 8 C.F.R. 
5 2 14.2(1)(3)(iv)(C). 
For the foregoing reasons, the appeal will be dismissed. 
Beyond the decision of the director, the record does not contain sufficient documentation to persuade the 
AAO that the beneficiary has been or would be employed in a position that requires specialized knowledge, 
as required at section 101 (a)(] 5)(L) of the Act. 8 U.S.C. 5 1 10 1 (a)(15), or that the petitioner wou Id support 
such a position within one year of approval of the petition. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has 
been employed in a specialized knowledge position or that the beneficiary is to perform a job requiring 
specialized knowledge in the proffered position. Although the petitioner asserts that the beneficiary s position 
requires specialized knowledge, the petitioner has not articulated any basis to the claim that the beneficiary is 
employed in a capacity requiring specialized knowledge. Other than submitting a general description of the 
beneficiary's job duties, the beneficiary has not identified any aspect of the beneficiary's posit~on which 
involves special knowledge of the petitioning organization's product, service, research, equipment, 
techniques, management, or other interests. The petitioner has not submitted any evidence of the knowledge 
and expertise required for the beneficiary's position that would differentiate that employment from the 
position of "automotive component design engineer" at other employers within the industry. Simplq going on 
record without supporting documentary evidence is not sufiicient for the purpose of meeting the lburden of 
proof in these proceedings. Matter of Treasure Oajt of Calforniu, 14 I&N Dec. at 190. Specifics are clearly 
an important indication of whether a beneficiary's duties involve specialized knowledge, otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd v. Suva. 724 
F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
For this additional reason, the appeal must be dismissed. 
LIN 03 249 51813 
Page 6 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.