dismissed L-1B Case: Plastics Manufacturing

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U.S. Department of Hon~eland Security 
20 Mass. Ave. N.W.. Rm A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
File: Office: CALIFORNIA SERVICE CENTER Date: MA)' I LJ m)5 
IN RE: Petitioner: 
Beneficiary: 
1' 
Pet~t~on: Petition for a Nonimmlgrant Worker Pursuant to Sect~on 101(a)(15)(L) of the Immigration 
and Nat~onallty Act. 8 U.S.C. 5 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
1 
I1 
INSTRUCTIONS: 
Th~s 1s the dec~s~on of the Admin~strative Appeals Office In your case. All documents havc been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
0 
dm~nistrative Appeals Office 
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I 
DISCUSSION: The Director, Cal~forn~a Serv~ce Center, denled the petlt~on for a non~mmlgrant vlsa. The 
matter IS now before tie Admin~strative Appeals Office (AAO) on appeal. The AAO w~ll dlsmlss the appeal. 
The pet~t~oner seeks to employ the benefic~ary temporanly In the Unlted States as an L-IB nonlmmlgrant 
lntracompany transferee w~th speclallzed knowledge pursuant to sectlon 101(a)(15)(L) of the lmmlgrat~on and 
Nationality Act (the Act). 8 U.S.C. $ 1101(a)(15)(L). The U.S. petitloner, a corporat~on organized In the 
State of Cahfom~a engaged In plastics manufacturing, seeks to employ the beneficiary as a purchas~ng and 
mater~al control specialist. The pet~tioner claims to be the subsidiary of - located in 
Kyung-buk, Korea. 
The drrector denled the petltlon concluding that the buslness ent~ty m the Unlted States was not a qualifying 
organlzatlon as defined In 8 C.F.R. 4 214.2(1)(1)(11)(G) and as required under 8 C.F.R. 5 214.2(1)(3)(1). 
Speclfically, the dlrector found that the mlnlmal ev~dence of the pet~t~oner's busmess dealings In the Un~ted States 
suggested that tt was not dolng buslness as defined by the regulat~ons, and thus was unable to meet the defin~hon 
of a qual~fylng organlzat~on. In addlt~on, the d~rector concluded that the petitioner had fa~led to establ~sh that ~t 
had suffic~ent premlseq to house ~ts manufactunng buslness. 
The petltloner filed an hppeal In response to the denial. On appeal, counsel for the petltloner contends that the 
d~rector's bas~s for denlal was erroneous since ~t focused on the small sue of the pehtloner and not ~ts actual 
busmess funct~ons. 14, add~t~on, counsel alleges that the sales actlvlty conducted by the petltloner establ~shed 
that the petltloner was dolng buslness as defined by the regulat~ons. F~nally, In the alternative, counsel alleges 
If 
that the petltloner was' unfalrly pun~shed for malntalnlng a conservative busmess plan. and that overall, it 
meets the definrtion of a qualifylng organlzatlon. In support of these content~ons, counsel for the petlt~oner 
submlts a brlef and addltlonal ev~dence. 
1 
To establ~sh ei~gtb~l~ty~, for the L-1 non~mmigrant visa class~ficat~on, the petlt~oner must meet the criter~a 
outlined tn sectlon 101(a)(15)(L) of the Act. Speclfically, a qualifylng organrzat~on must have employed the 
benefictary In a qual~fy~ng manager~al or executlve capac~ty, or In a specialized knowledge capaclty, for one 
continuous year wlthih three years preceding the beneficiary's appl~cat~on for admlss~on Into the Un~ted 
States. In add~t~on, the benefic~ary must seek to enter the United States temporarily to contlnue rendering his 
or her senrlces to the 'same employer or a subs~diary or aftillate thereof In a manager~al. executlve. or 
spec~al~zed knowledge capaclty. 
The regulatton at 8 C.F.R. 4 214.2(1)(3) states that an indlv~dual pet~t~on filed on Form 1-129 shall be 
accompanied by 
(1) Ev~dence that the pet~t~oncr and the organlzatlon wh~ch cmployed or will employ the 
ahen are qual~fymg organizations as defined in paragraph (1)(1)(11)(Ci) of thls sect~on. 
(11) Evidence that the allen wlll be employed In an executlve, managerial, or speclallzed 
knowledge capac~ty, lncludlng a detalled dcscr~pt~on of the servlces to be performed. 
t 
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(111) Evldence that the alien has at least one continuous year of full time employment 
abroad wlth a qual~fylng organization withln the three years preceding the fillng of 
the petltlon. 
(iv) Ev~dence that the allen's pnor year of employment abroad was In a posltlon that was 
managerial, executive or involved specialized knowledge and that the allen's prior 
education, training, and employment qualifies himher to perform the intended 
semlces in the Unlted States; however, the work in the United States need not be the 
same work which the allen performed abroad. 
The primary issue in this matter is whether the petitioner is a qualifying organization as defined. by 8 C.F.R. Cj 
214.2(1)(l)(ii)(G). Specifically, the regulation defines the term "qualifying organization" as a United States or 
foreign firm, corporation, or other legal entity which: 
(I) Meets exactly one of the qualifying relationships spec~fied in the definitions of a 
parent, branch, affiliate or subsid~ary spec~fied in paragraph (1)(1)(1i) of thls section; 
(2) Is or will be dolng buslness (engag~ng in international trade is not required) as an 
employer In the United States and in at least one other country dlrectly or through a 
parent, branch, affiliate, or subsrd~ary for the duration of the allen's stay in the Unlted 
States as an lntracompany transferee; and 
(3) Othenvlse meets the requirements of section 101(a)(15)(L) of the Act. 
Slnce the evidence of record lnd~cates that the petitioner is a wholly-owned subsid~ary of the foreign parent, 
the director focused on the second cr~tena above; namely, whether the U.S. entity is or will be doing business. 
The regulation at 8 C.F.R 4 214 2(1)(1)(11)(H) defines the term "domg business" as "the regular, systematic, 
and continuous provlslon of goods and/or servlces by a qualifying organizat~on and does not include the mere 
presence of an agent or office of the quallfy~ng organization in the Unlted States and abroad." 
In this matter, the petltloner claims that it IS engaged In manufacture of plast~c, and specifically states that ~t 
produces plastlc parts and components used In the electronic consumer product Industry In support of the 
petition, the pet~tioner subm~tted its lease agreement for 225 square feet of office space (wh~ch had explred on 
June 30, 2001), as well as a financ~al statement for the U.S entity, showlng net sales of $1,854.380 for the first 
three quarters of 200 1. The director found this in~t~al ev~dence to be ~nsuffic~ent, and consequently issued a 
request for additional evldence on December 20, 2001. The d~rector requested add~tional documentation 
pertaining to the pet~t~oner's business, including a busmess Ilcense, invoices. and an updated lease agreement. In 
a response dated February 20, 2002, the pet~tioner subm~tted the requested documentation, and In an 
accompanying cover letter counsel indicated that the U.S petltloner was merely a sales office for the forelgn 
parent's manufactunng busmcss. Counsel further explained that the intended purposes of the beneficiary's U.S. 
employment was to expand the U.S. office and hire new employees.' Flnally, counsel stated that although the 
petitioner's ulbmate lntent~on was to have production and manufacturing operations m the United States office, 
they were not currently engaged in such operations. 
Accompanying counsel's letter were numerous documents, including: (1) the pet~t~oner's busmess Ilcense; (2) 
three Involces, dated December 3,2001 and December 4. 2001 and showlng approx~mately $1 1,600 In sales; and 
(3) a letter from the petitioner's landlord confirming the extension of the commercial lease untll June 30,2002. 
After reviewing this additional evidence, the director denied the petition. The director concluded that the 
petitioner had failed to submit sufficient evidence to establish that it had been or would be doing business as a 
plastics manufacturer. Specifically, the director noted that the three invoices submitted in support of its 
alleged manufacturing business did not show that the petitioner had been continuously and systematically 
provjding goods or services. In addition, the director noted that the photographs submitted hy'the petitioner 
corroborated the small 'amount of square footage listed on the lease agreement, compelling the director to find 
that the petitioner had riot secured adequate premises for its intended business operations. 
On appeal, counsel for the petitioner discusses the nature of the petitioner's business. and contends that the 
director's decision unfairly Prejudiced the petitioner for being a small company still In its start-up phase. 
They note that although established in March of 2000, the U.S. petitioner is still a relatively new business in 
its development stage. Despite this relatively new status, however, counsel refers to the nearly $2 million in 
net sales that it allegedly transacted for the' first three quarters of 2001. Counsel, however, provides no 
supporting documentation, such as invoices, to supplement the sales figure featured on the financial statement 
provided. 
On revlew of the evidence submitted, the AAO concurs with the director's findlng that the petltloner fatled to 
demonstrate that ~t had been and w~ll be do~ng busmess, and thus, by definition. 1s not a qual~fylng 
organ~zat~on for purposes of this analysis. Flrst, In the course of examlnlng whether the petltionlng company 
has been dolng buslness as a plastlcs manufacturer, ~t IS reasonable to expect coples of documents that are 
requ~red In the dally operation of the enterpnse, such as lnvolces and shipp~ng receipts. Any company that 1s 
dolng buslness through the regular, systematic, and continuous provlslon of goods or services may reasonably 
be expected to submlt coples of these lnvolces ev~denclng the amount of sales actually done. 
Other than the three involces prev~ously discussed, there is no addltlonal documentation existlng in the record 
to estabhsh that the petlt~oner has been engaglng in the sale of plastlc goods as ~t clalms In the pet~t~on and 
agaln on appeal. Golng on record wlthout supporting documentary evidence IS not suffic~ent for purposes of 
meetlng the burden of proof In these proceedings. Matter of Sof$cr, 22 I&N Dec. 158. 165 (Comm. 1998) 
(citing Matter of Trrasrrre Crafr of California. 14 I&N Dec 190 (Reg. Comm. 1972)) In addltlon. wlthout 
documentary evldence to support hls clarms, the assertions of counsel wlll not satisfy the petltloner's burden 
of proof. The assertions of counsel do not constitute evldence. Mutter r,fObaighencr, 19 I&N Dec 533, 534 
I Slnce the corporate documentation subm~tted with the pet~tion ~ndlcated that the U S ent~ty was 
Incorporated on March 24, 2000, the dlrector noted that the U.S. ent~ty was not ellgble for considcratton as a 
new office, since ~t had been In buslness for nearly two years pnor to the petlt~on's fillng. 
Page 5 
(BIA 1988); Matter of Laurenno, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
On appeal, counsel submlts for the first time a large stack of lnvo~ces dating from December 3, 2001 through 
January 31, 2002. Th~s evidence is unacceptable for two reasons. Flrst, the petition in thls matter was filed 
on December 3. 2001. The petitioner must estabhsh ellglblllty at the tlme of fillng the non~mmlgrant vlsa 
petlt~on. A vlsa pet~t~on may not be approved at a future date after the petitioner or benefic~ary becomes 
ellglble under a new set of facts. Mutter ofMichelril Tire Corp , 17 I&N Dec. 248 (Reg. Comm. 1978). Since 
almost all of the lnvolces submitted were subm~tted a$er the petltlon was filed, they are not acceptable. The 
petltioner was put on notice of requlred evldence and glven a reasonable opportunity to provtde ~t for the 
record before the vlsa petlt~on was adjudicated. The petitioner faded to subm~t the requested evidence and 
now submits lt on appeal. However, the AAO wlll not consider this evidence for any purpose. See Matter of 
Sonuno, 19 I&N Dec. 764 (BIA 1988); Malter of Obaigbena. 19 I&N Dec. at 534. The appeal wlll be 
adjudicated based on the record of proceeding before the director. 
Finally, in the event that 'the invoices were accepted as evidence, counsel overlooks the fact that these 
invoices represent, at best, a two-month series of business activity. There is no additional evidence of the 
petitioner's alleged business operations ~rior'to this time period, which therefore makes it impossible to 
conclude that the petitioner had been regularly and systematically engaged in the provision of goods and 
services. The definitio" of doing business clearly requires the continuous provision of goods and services, yet 
the petitioner has failed to submit evidence establishing its business activities for.the remainder of the first 
year. On appeal, counsel fails to address this pertinent issuk, but correctly obscmes that a company's size 
alone, without taking into account the reasonable needs oEthe organization, may not be the determining factor 
in denying a visa to a nonimmigrant intracompany transferee with specialized knowIedge. However, it is 
appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size or a "shell company" that 
does not conduct business in a regular and continuous manner. See, e.g. S~istronics Corp. v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in 
the record and fails to believe that the facts asserted are true. Id. 
In the present matter. the evidence submitted is insufficient to establish that the petitioner has been doing 
business as defined by the regulations. Therefore, the petitioner cannot be deemed a qualifying organization 
under 8 C.F.R. 8 214.2(1)(3)(i). 
The next lssue In th~s matter is whether the pet~t~oner has secured sufficlent physlcal premlses In %h~ch to 
house the new organization. The regulation at 8 C.F.R. 4 214,2(1)(3)(vl)(A) provldes that ~f the petltlon 
lndlcates that the beneficlary is comlng to the Un~ted States In a speclallzed knowledge capacity to open or to be 
employed In a new ofice, the petltioner shall submit evldence that sufficlent physical premlses to house the new 
office have been secured. Upon revlew of the record of proceeding, the AAO disagrees w~th the basls for the 
dlrector's findlng In thls matter. The pet~t~oner has been Incorporated slnce March 24. 2000 Consequently, the 
petltloner cannot be deemed a new office. Slnce the beneficlary was not intended to come to the Un~ted States to 
open a new office or be employed m a new office, the regulatory requirement set forth above is ~nappllcable, and 
the dlrector's comments wlth respect to this Issue will be w~thdrawn. 
Page 6 
Beyond the decision of the director, the record as presently constituted is not persuasive in demonstrating that 
the beneficiaj is 'to perform a job requiring siecialized 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 position 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 "purchasing/material control specialist" 
at other employers within the industry. Simply going on record without supporting documentary evidence is 
not sufficient for the purpose of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. at 165 (citing Matter of Treasure Craft of Calzfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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 Fedirr Bros. ~o.,' Lrd. v. 
' 
Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), ctff'd, 905 F.2d 41 (2d. Cir. 1990). 
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, hrc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). afd. 345 F.3d 683 
(9th 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 lrovo basis). 
In vlsa petitlon proceedmgs. the burden of proving ehgbility for the benefit sought remalns ent~rely with the 
petltloner. Section 291 of the Act, 8 U.S.C. 4 1361. Here, that burden has not been met. Accordmgly, the 
d~rector's decision w~ll be affirmed and the pet~tion will be denlcd. 
ORDER: The appeal IS dism~ssed.