dismissed L-1B Case: Talent Agency

u.s. Department of Homeland Security
20 MassachusettsAve., N.W., Rm. A3042
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC-04-192~51315 Office: CALIFORNIA SERVICE CENTER Date: JAN 13 2006
IN RE: o'Pe,titioner:
:B&heficiary:
<, ,
Petition:
~,
" Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 110l(a)(l5)(L)
IN~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.
obert P. Wiemann, irector
rdministrative Appeals Office
, www.uscis.gov
" WAC-04-192-51315
Page 2
DISCUSSION: The Director, California 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 as a general manager under
the L-IB "specialized knowledge" nonimmigrant, intracompany transferee visa,· pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner
asserts that it is a branch of ., located in Varna, Bulgaria. The petitioner
claims to operate in California as a "talent agency" through a separate entity, T 5 7 ,. Model and Talent
Agency.
On July 7, 2004, the director determined that the petitioner did not contain sufficient documentation and
requested additional evidence. The petitioner responded with a lengthy cover letter and additional
documentation.
On August 4, 2004, the director .denied the petition, determining that the petitioner and the foreign entity did
not maintain a qualifying relationship and that the beneficiary's services were not intended for a temporary
period, as the regulations require for owners and major stockholders.
The petitioner subsequently filed an appeal. On appeal, the petitioner asserts that the decision was based on
improperly explained facts and that the director failed to consider evidence In the record. In support of this
assertion, the petitioner submits a brief.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act, 8 U.S.C. § 1101(a)(l5)(L). 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 the 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.
(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.
WAC-04-192-51315
. Page 3
(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 which the alien performed abroad.
The regulation at 8 C .F.R. § 214.2(1)(1)(ii)(F) defines the term "new office" as "an organization which has
been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one
year."
Pursuant to 8 C.F.R. § 214.2(l)(3)(vi), if the petition indicates that the beneficiary is coming to the United
States as in a specialized knowledge capacity to open or to 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 business entity in the United States is or will be a qualifying organization as
defined in paragraph (1)(1)(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.
The first issue to be discussed in"this matter is whether the beneficiary , as an indirect owner of the petitioner,
will be employed for a temporary period and transferred to an assignment abroad upon the completion of the
temporary services in the United States. As cited by the director, the regulations state that "[i]f the
beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence
that the beneficiary's services are to be used for a temporary period .... " 8 C.F .R. § 214.2(l)(3)(vii).
On appeal, the petitioner notes that it stated in the initial letter that the beneficiary would be employed on a
temporary basis and return to B.ulgaria upon completion of her assignment. The petitioner affirms this
statement on appeal.
Generally, the petitioner for an L-l nonimmigrant classification need submit only a simple statement of facts
and a listing of dates to demonstrate the intent to employ the beneficiary in the United States temporarily.
However, where the beneficiary is claimed to be the direct or indirect owner or a major stockholder of the
petitioning company , a greater degree of proof is required. Matter ofIsovic, 18 I&N Dec. 361 (Comm. 1982);
see also 8 C.F.R. § 214 .2(1)(3)(vii). The record indicates that the beneficiary is a major owner of the
petitioning organization .
As will be discussed , there is no evidence that the foreign entity abroad continues to operate or conduct
business such that it ma y employ the beneficiary upon completion of her assignment in the United States.
" WAC-04-192-51315
Page 4
Therefore, the beneficiary's stay does not appear to be temporary. For this reason, the decision of the director
must be affirmed and the petition denied.
The second issue to be discussed in the present matter is whether the petitioner has established that a
qualifying relationship exists with the U.S. petitioner. To establish a "qualifying relationship" under the Act
and the regulations, the petitioner must show that the beneficiary's foreign employer and the U.S. employer
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as
"affiliates." See generally, section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
Pursuant to 8 C.F.R. § 214.2(1)(1 )(ii)(G), the term "qualifying organization" means a United States or foreign
firm, corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraph (I)(1)(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.
The regulation at 8 C.F.R. § 214.2(l)(1)(ii) states in relevant part:
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the ,same organization housed in a
different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
(L) Affiliate means:
(1) One of two subsidiaries both of which are owned and controlled by the same
par~nt or individual, or
WAC-04-192-51315
Page 5
\
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the same
share or proportion of each entity ....
Upon review of the record, both the petitioner and the director appear to be confused regarding the
relationship between the petitioning entity arid the beneficiary's overseas employer. In the initially submitted
cover letter, dated June 23, 2004, the petitioner made it clear that th
is the petitioner and that it will be doing business in the United States through the "subsidiary" ......
The petitioner submitted a California Fictitious Business Name
Statement to show that ZM Studios is operated by Yuliyan Andreev and'
Although the petitioning partnership claimed that it owns 50 percent and controls ZM Studios, the petitioner
submitted no evidence of this claim, such as a contract, partnership agreement, or ajoint venture agreement.
The director issued a request for additional evidence on July 7, 2004. Regarding the claimed qualifying
relationship, the director specifically requested a copy of the foreign company's Limited Liability Partnership
agreement. The director also noted that wire transfer documents indicated that the start up funds came from
•••••••• in South Africa, and not
In response to the request, the petitioner submitted translated copies of the Bulgarian limited liability
partnership agreement, showing that the beneficiary and Yuliyan Andreev are partners with each holding 50
percent of the partnership shares.
In the decision and the resulting appeal, both the director and the petitioner focus on whether the overseas
Bulgarian partnership exists as a separate legal entity such that a qualifying relationship exists between itself
and the United States employer ..
In her decision, the director concluded that unlike a corporation, the overseas partnership does not exist as an
entity apart from the individual partners. See Matter of United Investment Group, 19 I&N Dec. 248, 250
(Comm. 1984). The director noted that the beneficiary is a partner of the foreign partnership and that the
Bulgarian partnership is petitioning for the beneficiary with no separate legal entity organized under U.S. law.
The director noted that the actual partnership that existed when the job offer was made must continue and
intend to employ the beneficiary. The director emphasized that "[a] separately entered partnership or a newly
entered partnership may not be a successor of interest for this purpose." After a succinct review of the facts,
the director concluded that there is "no foreign entity to employ the beneficiary and therefore no qualifying
organization."
On appeal, the petitioner asserts that Bulgarian law establishes that a partnership is a separate legal entity and
thus has a qualifying relationship.
The petitioner misconstrues the director's decision and its assertioris on appeal are not persuasive. It is
fundamental to this nonimmigrant classification that there be a United States entity to employ the beneficiary.
I
A foreign employer must have or be in the process of establishing a legal entity in the United States which
\
·',
WAC-04-192-51315
Page 6
will be doing business as an employer in order to transfer an employee under sectiori·101(a)(15)(L). 52 Fed.
Reg. 5738, 5741 (February 26, 1987).
. In order to meet the definition of "qualifying organization," there must be a United States employer. See 8
C.F.R. 214.2(l)(l)(ii)(G)(2). Although the statute refers to an alien that seeks to enter the United States
, temporarily in order to render his or her services to "the same employer or a subsidiary or affiliate thereof,"
CIS interprets the phrase "same employer" through the regulations to mean a "branch office" of a foreign
entity that is authorized to do business in United States. The regulations define the term "branch" as "an
operating division or office of the same organization housed in a different location." 8 C.F.R.
§ 214.2(l)(l)(ii)(J).
If the petitioner submits evidence to show that it is incorporated or has formed a separate partnership in the
United States, then that entity will not qualify as "an ... office of the same organization housed in a different
location," since that corporation is a distinct legal entity separate and apart from the foreign organization. See
Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17I&N
Dec. 530 (Comm. 1980); and Matter ofTessel, 17 I&N Dec. 631 (Act . Assoc. Comm. 1980).
CIS has recognized that the branch office of a foreign corporation may file a nonimmigrant petition for an
intracompany transferee . See Matter ofKloetti, 18 I&N Dec. 295 (Reg. Comm. 1981); Matter of Leblanc, 13
I&N Dec . 816 (Reg . Comm. 1971); Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter
of Penner, 18 I&N Dec. 49 , 54 (Comm. 1982)(stating that a Canadian corporation may not petition for L-I B
employees who are directly employed by the Canadian office rather than a United States office). .When a
foreign company establishes a branch in the United States , that branch is bound to the parent company
through common ownership and management. A branch that is authorized to do business under United States
law becomes, in effect, part of the national industry. Matter ofSchick, supra at 649-50.
Probative evidence of a branch office would include the following: a state business license establishing that
the foreign corporation is authorized to engage in business activities in the United States; copies of Internal
Revenue Service (IRS) Form 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies IRS Form
941, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies ofa lease for
office space in the United States; and finally, any state tax forms that demonstrate that the petitioner is a
branch office of a foreign entity.
In the present matter, the precedent decision Matter ofPenner is directly applicable to the facts. 18 I&N Dec .
at 54. In Matter of Penner, the Associate Commissioner upheld the director's denial of an L-lB petition in
part because the beneficiary was directly employed by the foreign employer and not by a U.S. employer. The
Associate Commissioner found that this scenario was contrary to the intent of Congress since "virtually any
foreign based business would be able to use the 'L' visa category to bring to .the United States any number of
its employees whether or not abusiness entity existed or was being established in this country ." Id. Here, the
foreign partnership has asserted that it will directly employ the beneficiary in the United States.
Although the petitioner has submitted a copy of a California Fictitious Business Name Statement to show that
ZM Studios is authorized to conduct business in the United States, the petitioner clearly states that the
WAC-04-192-513 15
Page 7
beneficiary. will be employed by the foreign partnership and not by ZM Studios. Accordingly, the foreign
partnership must be considered the petitioner. Furthermore, the submitted documentation indicates that ZM
Studios is owned in part by " I a Limited Liability Company. This
document raises additional doubts for two reasons. First, because the foreign employer is a partnership and
not a Limited Liability Company, the evidence raises concerns that there may be a separate entity that has an
ownership interest in ZM Studios rather than the Bulgarian partnership.' Second, the fact that the petitioning
partnership claims to possess a 50 percent interest and control ZM Studios, the documentation suggests that
ZM Studios is a separate legal entity, formed as a partnership. As previously noted, the petitioner has
submitted no evidence of this claimed ownership and control, such as a contract, partnership agreement, or a
joint venture agreement. Accordingly, even if ZM Studios were to be considered as a branch or the U.S.
employer contrary to the petitioner's claims, there is insufficient evidence to demonstrate that it is related to
the beneficiary's overseas employer though ownership and control.
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-
.92 (BIA 1988). Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec: 158, 165 (Comm. 1998)
In the present matter, because the petitioner is a foreign entity with no branch office in the United States,
there is no U.S. entity to employ the beneficiary and no qualifying organization.
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(G)(2) requires that a qualifying organization:
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.
Critical to the evaluation of the claimed qualifying organization, the petitioner must demonstrate that it
continues to do business overseas as an employer. The petitioner has not submitted any evidence to establish
that the foreign partnership continues to do business, as required at 8 C.F.R. § 214.2(l)(1)(ii)(G)(2). The
current record is devoid of any evidence to indicate that the Bulgarian partnership continues to do business in
Bulgaria as an employer.
Unlike a corporation, a partnership is a contractual relationship that does not exist as an entity apart from the
individual owners. Matter of United Investment Group, 19 I&N Dec. at 248. In the present matter, both the
beneficiary and her partner in Bulgarian Telephone Books LLP are present in the United States. The presence
1 The California Business Portal, an online database of corporations registered with the California Secretary of
State; reveals that ZM Studios is actually incorporated, as opposed to being operated as a fictitious entity by
the foreign petitioner. See http://kepler.ss.ca.gov/corpdata/ShowAllList?QueryCorpN umber=C26883 84
(accessed January 12,2006).
WAC-04-192-51315
Page 8
of the beneficiary and her partner in the United States raises the question of whether the foreign business
continues to do business abroad. The lack of current evidence leads the AAO to conclude that the foreign
partnership is no longer doing business.
The fact that a business is registered abroad is not sufficient to demonstrate that it is conducting business as
defined by the regulations governing this classification. Although the Bulgarian partnership claims to employ
the beneficiary, the evidence presented by the "Manager-In-Chief' of the foreign entity was mailed from
California, and the address listed for this individual on the 1-129 is in California, 'despite the fact that it is
presented as being from the Bulgarian company with a Bulgarian address. Thus, the statements of this
individual are not sufficiently objective and independent to warrant credibility.
For this additional reason, the petitioner has not established that it maintains a qualifying relationship as
required by the regulations.
Beyond the decision of the director, the third issue in this matter is the failure of the petitioner to establish that
the beneficiary will be employed in a specialized knowledge capacity. Although the director did not base his
decision in part on the failure to establish specialized knowledge capacity, failure to address the
inconsistencies of the petition onthis issue would be gross error on the part of CIS. 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), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor
v. INS, 891 Fold 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).
The petitioner has failed to articulate how beneficiary's position in the United States will involve specialized
knowledge as required by the regulation at 8 C.F.R. § 214ol(1)(3)(ii), and whether beneficiary was employed
in a capacity that utilized such specialized knowledge as required by 8 C.F .R.§ 214.2(1)(3)(ii).
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides the following:
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity
involving specialized knowledge with respect to a company if the alien has special
knowledge of the company product and its application in international markets or has an
advanced level of knowledge of processes and procedures of the company.
Furthermore, the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(D) defines specialized knowledge as:
[S]pecial knowledge possessed by an individual of the petitioning organization's product,
service, research, equipment, techniques, management, or other interests and its application in
international markets, or an advanced level of knowledge or expertise in the organization's
processes or procedures.
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.
WAC-04-192-51315
Page 9
See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner must submit a detailed description of the services to be
performed sufficient to establish specialized knowledge. !d. It is also appropriate for the AAO to then look
beyond the stated job duties and consider the importance of the beneficiary's knowledge of the business's
product or service, management operations, or decision-making process. A specific occupation will not
inherently qualify a beneficiary as possessing specialized knowledge. Matter ofColley, 18 I&N Dec. 117, 120
(Comm. 1981)(citing Matter of Raulin, 13 I&N Dec. 618 (R.c. 1970) and Matter of LeBlanc, 13 I&N Dec.
816 (R.C. 1971)).2
In response to the director's RFE, the petitioner described the beneficiary's job duties and specialized
knowledge as follows:
The new office is a small business and, as common practice for small business, will support
positions where the duties are appropriate mix of professional and managerial functions.
Development of the subsidiary requires not only providing highly professional services but
performing managerial functions as well, including but not limited to: directing the functions
of the organization; running the day-to-day operations; hiring, training and promoting of
professional employees and other personnel, binding the new office by signing contracts with
the business clients and talents, supervising the professional employees to be hired; managing
the career of talents, etc.
*.* *
• Plan, organize and control the functions of the talent agency department
• Direct the management of the talent agency department
• Run and direct the day-to-day operations of the talent agency department
• Supervise professional employees
• Supervise the free-lanced subagents contracted, including foreign sub-agents
• Scout and select suitable local and foreign talents
• . Sign contract or other forms of agreements with talents
• May amend, extend and terminate contracts with talents
• Manage the talent's career by providing talents with temporary jobs in hone and international
markets
• Negotiate and sign agreements with local and foreign business clients
2 Although the cited precedents pre-date the current statutory definition of "specialized knowledge," the AAO
finds them instructive. Other than deleting the. former requirement that specialized knowledge had to be
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior
INS regulation or precedent decisions interpreting the term. The Committee Report simply states that the
Committee was recommending a statutory definition because of "[v]arying [i.e., not specifically incorrect]
interpretations by INS," H.R. Rep. No. 101-723(1), at 69,.1990 U.S.C.C.A.N. at 6749. Beyond that, the
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO
concludes, therefore, that the cited cases, as well as Matter ofPenner, remain useful guidance concerning the
intended scope of the "specialized knowledge" L-IB classification.
WAC-04-192-51315
Page 10
• Supervise the fulfillment of the signed agreements
• Has the authority to hire, fire , promote and train talent agents
• Has the authority to perform any actions at her sole discretion.
This language is not probative as the petitioner is clearly paraphrasing the regulations defining managerial
and executive capacity . Employment in a managerial or executive capacity is not employment in a
specialized knowledge capacity. See generall y 8 C .F.R. § 214.2(l)(l)(ii). Thus, quoting the regulations for
managerial and e xecutive capacity are not probative on the specialized knowledge capacity of beneficiary's
employment.
In the initial letter the petitioner failed to articulate how the beneficiary will be employed in specialized
knowledge capacity, merely asserting that the beneficiary's employment abroad gives the beneficiary
knowledge of the foreign partnership's operations. Primarily setting up a business for operations does not
require specialized knowledge , and in characterizing the beneficiary as a specialized knowledge employee the
petitioner failed to articulate in a detailed manner how the beneficiary 's duties would qualify as.a specialized
knowledge capacity. See BusinessPlan , petitioner, attached hereto as petitioner 's initial exhibit, p. 21 (stating
that the "first year of operation [petitioner] will focus on firm establishment of the company"). The petitioner
fails to support the assertion that the beneficiary has specialized knowledge and will be employed in
specialized knowledge capacity or has relevant advanced knowledge of the foreign partnership's operations.
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. at 165. Merely asserting that the
beneficiary has been employed abroad in a specialized knowledge capacity without submitting probative
documentary evidence to support this is not sufficient to demonstrate eligibility in these proceedings .
When offered an opportunity by the director to elaborate on the beneficiary's specialized knowledge , the
petitioner responded to the director's RFE by concluding that the director's request is not relevant. Instead,
the petitioner compared the nonimmigrant classifications of H-l Bs and L-1Bs . This response is not a relevant ,
line of reasoning in responding to a request for evidence, and thus it is not probative in determining the
employment capacity of the beneficiary. The petitioner's objection to the request is not an appropriate
response. By itself, the petitioner's failure to submit requested evidence that precludes a material line of
inquiry shall be grounds .for denying the petition. 8 C.F .R. § 103.2(b)(l4).
~he petitioner asserted in response to the director's request for evidence that talent agents are not readily
available in the . U.S. labor market. This assertion is overbroad and completely unsupported and
uncorroborated by any documentation contained in the record. 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». Furthermore , even if it were supported by evidence , the petitioner's
assertion does not establish the beneficiary's specialized knowledge and generally undermines its claim. The
L-1B category was not intended to alleviate or remedy a shortage of U.S. workers . Matter ofPenner, 18 I&N
Dec. at 48.
, .'
WAC-04-192-51315
Page 11
The petitioner asserts that the beneficiary possesses special knowledge of the company's service gained
through extensive experience with the petitioning company. The petitioner asserts:
• Beneficiary organized and held model searches for recruiting and booking of aspiring for fashion
runways, print ads and commercials. Her organizational skills and extensive experience are
valuable for the company and their application in the new office is necessity.
• Beneficiary has scent for new faces , the gift to recognize and the qualification and the vision to
nurture the talent. Through extensive prior experience beneficiary gained the knowledge of how
to make model's look marketable and the ability to brand model's image .
• She has established and maintains deep industry contacts with television companies, advertising
agencies, beer manufacturers, lingerie manufacturers, etc., major business clients.
• She is highly qualified to recruit, contract and manage the careers of models for fashion
runaways; fashion and editorial print modeling; lingerie, beauty and body modeling; commercial
modeling.
• She is highly qualified in the profiled field of recruiting and employing dancers , showgirls ,
singers and other show performers for job positions in variety of venues in international markets.
Application of this knowledge is obligatory to bring this new service on the U.S . market. .
• She has expertise of the services we provide on international markets and possesses knowledge of
the business environment and the foreign operating conditions. This qualification is of greatest
significance for the new office and is not available on the U.S. market.
These statements are largely conclusory assertions , lacking any corroborative documentary evidence in the
record. Further, the petitioner fails to establish a nexus between these unsupported and undocumented claims
with any advanced knowledge of the foreign partnership's procedures . Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N D~c . at 165.
The petitioner asserts that the beneficiary possesses unique qualifications in comparison to that of other
business professionals based on her prior modeling experience. As with the other assertions contained
throughout the petition there is no corroborating evidence in record whatsoever that the beneficiary was a
model or performed any sort of modeling work. The petitioner could have submitted a wide variety of
documentary evidence such as pictures , catalogues , pay stubs , biographies , news articles , etc., but failed to do
so. The petitioner then contradicts itself by asserting that two other talent agency companies were founded by
former models , running contrary to an assertion that the beneficiary's modeling experience distinguishes her
among other tal~nt agents .
The primary shortcoming of the petition on this issue is the failure to submit probati ve evidence that supports
the petitioner's assertions. As an example, the petitioner asserted that the beneficiary has been employed b y
the foreign partnership for ten years, but failed to provide evidence that the foreign partnership was
conducting business as its defined by regulations pertinent to this classification . The petitioner asserted that
the beneficiary has modeled all over the world but failed to provide any examples of work product , evidence
of employment or that the beneficiary's work significantly enhanced the financial position of the foreign
partnership. The petitioner asserts that the beneficiary has advanced knowledge of the foreign partnership's
WAC-04-192-5 1315
Page 12
operations, that she has special knowledge because she's a model and because of her extensive contacts.
However, in addition to being uncorroborated by evidence in the record , this assertion is insufficient to
articulate how this type of experience can only be gained through the foreign partnership. The petitioner 's
assertion that it offer s a unique service is unsupported and unpersuasive. The AAO could have accepted that
knowledge possessed from ten years of employment in the talent industry could not be easily transferred to
another individual if the petitioner had supported this assertion with documentary evidence. Since the weight
and sufficiency of the evidence submitted does not establish that the beneficiary was actually employed or
actually performed as a model, however, the AAO can not make a reasonably informed determination that the
knowledge possessed by the beneficiary is not easily transferable to another employee.
The legislative history for the term "specialized knowledge" provides ample support for a restnctive
interpretation of the term. In the present matter , the petitioner has not demonstrated that the beneficiary
should be considered a member of the "narrowly drawn" class of individuals possessing specialized
knowledge. See 1756, Inc. v. Attorney General, supra at 16 . Based on the evidence presented, the petitioner
has not established that the beneficiary was not employed abroad, and will not be employed in the future , in a
specialized knowledge capacity. Nor has it been established that the knowledge possessed by beneficiary of
petitioner's business procedures is advanced , despite the fact that only two other employees have received the
training that serves as the basis a distinction from other employees of petitioner.
On review, the petitioner has not demonstrated that the beneficiary possesses "specialized knowledge" as
defined in section 2l4(c)(2)(B) of the Act , 8 U .S.c. § I 184(c)(2)(B), and the regulation at 8 C.F .R. §
214.2(1)(1)(ii)(D) , nor has the petitioner demonstrated that beneficiary would be employed in a capacity
utilizing any such specialized knowledge as required by 8 C.F .R. § 214.2(1)(3)(ii).
For this additional reason, the petition must be denied.
Again, beyond the decision of the director, a fourth issue in this matter is the petitioner's failure to
demonstrate that the petitioner has the financial ability to remunerate the beneficiary and to commence doing
business in the United .States. 8 C.F.R. § 214.2(1)(3)(vi)(C). The business plan submitted is not probative ,
primarily consisting of sales language and broad , ambiguous statements, e.g. "The agency will quickly
penetrate into the continuously growing entertainment markets." (p. 3) The business plan is not sufficiently
detailed to demon strate that the petitioner will be able to remunerate the beneficiary and commence
operations in the California talent industry . The plan lacks any substantive examples of how the petitioner not
only intends to but has the capacity to initiate operations and conduct a business of this sort. This lack of
details prevents CIS from being able to determine that the business plan is reasonably calculated to succeed ,
or that it will support a managerial or executi ve position within one year and would be able to support
initiating business operations. As an example , the e xecutive summary states "[petitioner] will quickly reach
profitability and, in most conservative assumptions , will generate sales of $204,502 in year three" (p. 4) and
yet fails utterly to justify this proclamation with any .reasonable explanation as to how it will be done. The
only asset listed for the petitioner at this point is a surety bond for $10 ,000 (p. 7) . This fails to account for any
equipment , a leased premises , business licenses , or other resources that would be necessary to operate a
business of this sort , despite the fact that in a cover letter to the CIS the petitioner claims that it has the
necessary office equipment to initiate operations (a personal residence). This type of inconsistency is evident
· . WAC-04-192-51315
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throughout the entire business plan and fatall y impeaches its veracity as probative evidence on the issue of
ability to remunerate the beneficiary and commence business operations. ,
Other inconsistencies in the 'business plan casts doubt on its viability, and thus its weight as evidence. The
plan is clearly designed as a sales 'prospectus for clients, making statements such as "[petitioner] is engaged in
scouting ... recruiting ... organization . .. "(p.9) when clearly the petitioner has not even started operations .
This type of language is thus not probative as to how the petitioner will initiate operations in a manner
reasonably calculated to succeed.
The only section dealing with implementation of the business states briefly:
Being a new participant on the market, within the first year of operation [petitioner] will focus on
firm establishment of the company on the US market by building solid business relationships and
large database of talents contracted." (p. 21).
Not only does this indicate a lack of substantive planning, it further casts doubt that the beneficiary will be
employed in a specialized knowledge capacity as opposed to activities designed to commence business
operations and perform routine revenue generating activities. Other unsupported proclamations include
claiming "a shortage of professional talent agents in the U.S. market" and that the petitioner would "have no
real competition" in the California talent market. The petitioner must demonstrate that its assertions are
actual facts in order to demonstrate eligibility.
The plan asserts that the start up costs will only be $21 ,165, and yet it fails to account for the costs of such
things as the equipment , salaries, leases, etc . It also states that $110,000 is to be invested in the company , but
fails to indicate where this financing comes from and the record fails to provide any corroborating evidence
that such investment has been made. Other sections of the business plan discuss the services, market analysis
and structure in the same unsubstantiated manner. In short the business plan contains largely boilerplate
language with projections based almost exclusively on speculation and presumptions. This failure to
sufficiently detail the plan with supported, reasonable assertions gives the plan little probative weight in
establishing that the petitioner will support a specialized knowledge position.
A fifth issue in this matter concerns the petitioner 's failure to establish that -it has sufficient premises to
conduct business as required by 8 C:F.R. § 214.2(1)J3)(v). The weight of the evidence in the record with
regard to having sufficient premises for conducting business is not sufficient to carry the petitioner 's burden.
The petitioner has the burden of proving eligibility in these proceedings , and CIS has jurisdiction to assess the
weight of the evidence presented and determine eligibility.
In this case the petitioner has submitted a Rental Agreement. The petitioner admits this is a personal
residence. This admi ssion is fatal to the determination of securing sufficient pre~ise s to conduct business
because the residential lease is not an a~set of the petitioner itself, but was executed by of one of its owners in
his person~1 capacity. Further, the AAO is not per suaded that a personal residence is sufficient to carry out
the goals outlined in the business plan. The facts as outlined by petitioner show that the beneficiary , will be
residing in the address listed. This reflects negati vely on an assertion that the petitioner has secured sufficient
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WAC-04-192-51315
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premises to conduct business, and the petitioner failed to provide any mitigating evidence when given notice
by the director of this deficiency. Further, paragraph 16 of the lease submitted by the petitioner clearly states
that the premises are to be used as a residence only. See Rental Agreement, Stratus Real Estate, para. 16,
attached hereto as petitioner's unlabeled initial exhibit (stating that premises is for residential use only). Thus,
the petitioner has failed to establish that it has acquired a legitimate and sufficient premises to commence
business operations and carry out the business plan.
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision.
On appeal, the petitioner repeats over and over again that it is qualified and has submitted proof of eligibility.
Conclusory assertions and characterizations are not sufficient to carry the petitioner's burden in these
proceedings. Contrary to assertions of the petitioner, the director's decision clearly shows that all of the
evidence in the petition was considered. CIS has the discretion to determine the weight and sufficiency of
evidence in these proceedings, arid in this case the evidence submitted by the petitioner is riddled with
inconsistencies and lacks credibility. As the inconsistencies pointed out by the director were not overcome by
the petitioner on- appeal, these inconsistencies impeach the little evidence that has been submitted by the
petitioner. 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. u.s., 345 F.3d 683, 694 (9th
Cir., 2003). However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails
to resolve those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will
raise serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support
of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In this case, the discrepancies and
errors catalogued above lead the AAO to conclude that the evidence of the beneficiary's eligibility is not
credible. Accordingly, the petitioner has not established the beneficiary's eligibility for the requested
immigrant visa classification.
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8. U.S.c. § 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 and the petition is hereby denied.