dismissed L-1A Case: Accounting

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PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: WAC 06 15052165 Office: CALIFORNIA SERVICE CENTER Date: SfP 0 6 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office
that originally decided your case. Any further inquiry must be made to that office.
~
-
~/~ ~
Robe . ternann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 15052165
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 appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president and general
manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Georgia corporation,
claims to be the subsidiary of Rodriguez y Asociados S.C., located in Maracaibo, Venezuela. The petitioner
claims to be an accounting firm. The beneficiary was initially granted a one-year period of stay to open a new
office in the United States, and the petitioner now seeks to extend the beneficiary's stay for an additional three
years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the
director's decision was erroneous and that, contrary to the director's findings, the petitioner is qualified for the
benefit sought. In support of this contention, counsel submits a brief and additional evidence.
To establish eligibility for the L-l 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. § 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 (1)(I)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher to perform the intended
WAC 06 15052165
Page 3
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(l)(l4)(ii) provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) of this section;
(b) Evidence that the United States entity has been doing business as defined m
paragraph (l)(l)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The primary issue in this matter is whether the beneficiary will be employed by the United States entity in a
primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
WAC 06 15052165
Page 4
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In a letter dated March 27, 2006, the petitioner stated that it currently employed two persons, including the
beneficiary. With regard to the need for the beneficiary's services and the duties she would perform, the
petitioner provided the following description:
Beneficiary has been employed with the U.S. company since the approval of our original
L-IA visa in April 2005. As President and General Manager of [the petitioner], [the
beneficiary] directs and oversees all operations. She has been responsible for overseeing all
aspects of our operations, directing and coordinating activities of our personnel; has been
responsible [for] personnel, budget preparation and control; has studied and implement[ ed]
management methods in order to improve workflow, simplify procedures and processes, and
implement cost reductions; has directed the financial activities of the company, and directed
the preparation of reports which summarize the position of the business and forecast the
future business activity and financial position of the Company; has planned, developed and
established major economic objectives and policies for the company, including cost reduction
and control; has overseen the preparation of reports for solutions of administrative problems
and plan[ned] and develop[ ed] methods and procedures for carrying out the companies [sic]
activities to be implemented by those under her command; has reviewed activity reports and
financial statements to determine progress and status in attaining objectives and revis[ing]
objectives and plans in accordance with future conditions; has directed and coordinated
formulation of financial programs to provide funding for new or continuing operations to
maximize results on investments, and to increase productivity; has planned and developed
labor, and public relations policies designed to improve company's image and relations with
customers, employees and public.
The petitioner further explained that to date, the beneficiary hired one other professional employee, namely
•••••• , in the position of accountant. In support of this contention, the petitioner submitted its
quarterly tax returns for the quarters ending June 30, 2005, September 30, 2005, and December 31, 2005, all
WAC 06 15052165
Page 5
of which indicate that the beneficiary and_were on the petitioner's payroll during those quarters.
The petitioner further claimed that the beneficiary frequently utilized the services of contract accountants on
an as-needed basis.
On April 19, 2006, the director requested additional evidence pertaining to the nature of the beneficiary's
position in the U.S. business. The request specifically asked the petitioner to submit an organizational chart
for the petitioner; a more detailed description of the beneficiary's duties; and a list of all subordinates of the
beneficiary, with a description of each person's position title, duties and educational backgrounds.
In a response dated June 30, 2006~ner provided an organizational chart, which demonstrated that
the beneficiary directl su ervised_as originally claimed. The chart indicated that as president, the
beneficiary oversaw as the manager of accounting and taxes. Additionally, the chart indicated
that the beneficiary wou a so oversee a manager of operations, a position that was vacant at the time of the
chart's submission. With regard to the beneficiary's duties and the director's request for a more detailed
description, the petitioner restated in its June 30, 2007 letter the description quoted above and provided an
additional list of duties created by the petitioner. This document stated:
[The beneficiary] has been responsible for assuring the comply [sic] of the mission, vision,
values, and social goals of [the petitioner].
In order to do this and as a Chief Executive Office[r] she performs the following tasks:
General Administration
Operation Management
Legal Consultancy, and
External Audit
Among her basic tasks, she has been responsible for the [petitioner's] operations since
November 2004 to present. Also responsible for the office space opening (first in Buford and
[then] in Norcross, both in the metropolitan zone of Atlanta) and the relationship with [its]
customers from the headquarter ... in Venezuela.
She has developed new business for the United States Branch.
Her main responsibilities have been:
Supply real time financial and administrative information to the board of directors.
Manage the subscribed Premium of [the foreign entity] with the insurance companies.
Consultant services coordination received by [the foreign entity]
Planning of office space opening in different cities of the country, as well as international
location, especially in the United States.
WAC 06 15052165
Page 6
Maintain relationship and contact with all departments of the organization which allows a
good performance of activities and assigned functions; as well as with the government
entities in order to make sure they comply with all local laws. She also maintains kind
relationship with clients, suppliers, banks, and financial institutions that contribute to easy
[sic] the assigned job directions.
On July 21, 2006, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
capacity. The director concluded that the documentary evidence submitted did not establish that the
beneficiary would function at a senior level within the organization or that the beneficiary had sufficient
subordinate staff to relieve her from performing non-qualifying duties. Moreover, the director noted that it
appeared that the beneficiary was largely responsible for the performance of the petitioner's day-to-day tasks.
On appeal, counsel for the petitioner reasserts that the beneficiary, by virtue of her position as president, is by
definition functioning in a managerial and/or executive capacity. Counsel contends that the director's finding
that the description of duties was too broad is erroneous, and submits a description of chief executive
positions as outlined by the U.S. Department of Labor's Occupational Information Network in support of the
beneficiary's compliance with the regulations. Counsel further claims that the director erred by considering
the petitioner's size and stage of development when rendering the decision.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
The initial description of duties provided by the petitioner in these proceedings did little to describe the
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it
merely provided a vague overview of the nature of her duties; namely, she would function as president and
general manager of the petitioner and oversee virtually all aspects of the business. Consequently, the director
requested more specific information, including an overview of the petitioner's organizational structure in
order to better comprehend the work environment of the beneficiary. The petitioner responded to this request,
yet did not expand on the beneficiary's day-to-day duties. Instead, the petitioner resubmitted the a portion of
the initially-submitted description of duties and submitted an additional broad overview of duties, prepared by
the petitioner herself, that did little to clarify the beneficiary's actual day-to-day tasks. Also, a chart
pertaining to the organizational structure and the number of workers on the petitioner's payroll created
additional questions and discrepancies in the record.
Based on the evidence of record, the AAO is not convinced that the description of the duties of the
beneficiary is an accurate portrayal of a typical workday. In sum, the description in the record claims that the
beneficiary has the general responsibility of running and overseeing the entire operation of the petitioner.
Additionally, the petitioner claims it provides accounting and tax preparation services to the Spanish-speaking
community and presents evidence via invoices of the services it has rendered. However, the organizational
chart and quarterly wage reports indicate that only the beneficiary and a manager of accounting and taxes are
WAC 06 15052165
Page 7
employed by the petitioner. Despite claims of contractual accountants providing services to the petitioner on
an as-needed basis, no evidence of their services was provided in response to the request for evidence, nor
were they listed on the petitioner's organizational chart.' It appears, therefore, upon review of the limited
position description in the record and the simultaneous expansion of the petitioner's taxation business with a
small staff, that the beneficiary is directly responsible for all aspects of running the business and providing its
services, including personnel supervision, customer service, and tax preparation services.
The fact that the record indicates that the beneficiary is performing tax preparation services clearly shows that
she cannot be employed in a primarily managerial or executive position. These duties do not appear to fall
directly under traditional managerial or executive duties as defined in the statute. While some of her stated
duties, such as overseeing the entire operation of the petitioner, would generally be recognized as the
responsibilities of a manager or executive, the vague descriptions provided and the lack of sufficient
subordinate staff at the time of filing suggest that the beneficiary directly handles most aspects of the business
herself, instead of managing 'these operations. An employee who primarily performs the tasks necessary to
produce a product or to provide services is not considered to be employed in a managerial or executive
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a
majority of her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL
144470 (9th Cir. July 30, 1991). In this case, the petitioner has failed to do so.
1 On appeal, counsel submits copies of four checks payable to Veronica Garcia, who is allegedly a contractual
accountant for the petitioner. The checks, dated 3/7/06, 3/22/06, 7/29/06, and one of which is illegible, are
not acceptable for two reasons.
First, one of the checks is illegible, and another is dated after the filing of the petition. The petitioner must
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Second, of the two checks dated prior to the
filing of the petition, the petitioner failed to submit these items in response to the request for evidence. The
regulation states that the petitioner shall submit additional evidence as the director, in his or her discretion,
may deem necessary. The purpose of the request for evidence is to elicit further information that clarifies
whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F .R.
§§ 103.2(b)(8) and (12). The 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)(14). Despite the director's request for
clarification regarding additional staff members in the request for evidence, the petitioner failed to discuss any
contractual accountants in the response to the request for evidence. Where, as here, a petitioner has been put
on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764
(BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the
submitted evidence to be considered, it should have submitted the documents in response to the director's
request for evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of
the evidence submitted on appeal.
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Page 8
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has
not established that the beneficiary will be employed in either a primarily managerial or executive capacity.
Most troubling to the AAO is the fact that no explanation has been provided with regard to who performs the
clerical and administrative duties of the company. With regard to the petitioner's size, the reasonable needs of
the organization in relation to its overall purpose and stage of development must be considered and addressed
when staffing levels are used as a determining factor in approving an L-IA petition. See § 101(a)(44)(C) of
the Act, 8 U.S.C. § 1101(a)(44)(C). Counsel correctly observes that a company's size alone, without taking
into account the reasonable needs of the organization, may not be the determining factor in approving a visa
for a multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C).
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, the
absence of employees who would perform the non-managerial or non-executive operations of the company,
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics
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 addition, in
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that
CIS "may properly consider an organization's small size as one factor in assessing whether its operations are
substantial enough to support a manager." Family, Inc. v. U.s. Citizenship and Immigration Services, 469
F.3d 1313, 1316 (9 th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C.
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v.
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003).
There is no indication in this matter that the reasonable needs of the organization were not considered by the
director. On the contrary, it appears the reasonable needs were considered, and the director concluded that the
petitioner was incapable based on its overall purpose and stage of development to support a primarily
managerial or executive position as defined by sections 101 (a)(44)(A) and (B) of the Act.
In the present matter, the regulations provide strict evidentiary requirements for the extension of a "new
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner.
See 8 C.F.R. § 214.2(l)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office"
operation one year within the date of approval of the petition to support an executive or managerial position.
There is no provision in CIS regulations that allows for an extension of this one-year period. Despite
counsel's contentions on appeal, if the business does not have sufficient staffing after one year to relieve the
beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by
regulation for an extension. In the instant matter, it does not appear that the petitioner has yet reached the
point that it can employ the beneficiary in a predominantly managerial or executive position. For this reason,
the petition may not be approved.
Beyond the decision of the director, the petitioner indicates that the beneficiary is the majority owner of the
foreign entity, which in tum is the sole owner of the petitioner. If this fact is established, it remains to be
determined that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. §
214.2(l)(3)(vii) states that if 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 and
that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services
WAC 06 15052165
Page 9
in the United States. In the absence of persuasive evidence, it cannot be concluded that the beneficiary's
services are to be used temporarily or that she will be transferred to an assignment abroad upon completion of
her services in the United States.
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), affd. 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.