dismissed L-1A Case: Architectural And Engineering Drafting

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PUBLICCOPY
V.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: WAC 06 115 50632 Office: CALIFORNIA SERVICE CENTER Date: OCT 02 2007
IN RE: 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. § llOl(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R~f
Administrative Appeals Office
www.uscis.gov
WAC 0611550632
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 visa petition seeking to extend the employment of its president and
general manager as an L-IA nonimmigrant intracompany transferee pursuant to section lOl(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 110l(a)(lS)(L). The petitioner is a corporation
organized under the laws of the State of California and is allegedly a provider of architectural and engineering
drafting services. 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.
The director denied the petition concluding that the petitioner did not establish (I) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner has a
qualifying relationship with the foreign entity because the petitioner failed to establish that it is doing business
as defined by the regulations. .
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the beneficiary's
duties will be primarily those of an executive or manager. Counsel argues that the director erred in failing to
consider the role of foreign employees and independent contractors as well as the beneficiary's claimed
supervision of these workers. Counsel also submits a brief and additional evidence, including a statement
addressing the percentage of time to be devoted by the beneficiary to performing qualifying duties, evidence
addressing the beneficiary's purported supervision of foreign employees and independent contractors, the
petitioner's tax return, its bank statements, and its lease.
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 (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 0611550632
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 him/her 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. § 2l4.2(1)(14)(ii) also 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)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(1)(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 first issue in the present 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. § I 101(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
WAC 06 11550632
Page 4
(iv) exercises discretion over the day-to-day operatiot?-sof the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section lOl(a)(44)(B) of the Act, 8 U.S.c. § 110l(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.
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial
duties under section lOl(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and
rely on partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set
forth in the statutory definition for executive and the statutory definition for manager.
The petitioner described the beneficiary's job duties in a statement attached to the initial petition as follows:
Responsibilities:
In charge of day-to-day operations of the company. Responsible for the planning, organizing,
directing and controlling the operations of the business. Responsible for developing new
market initiatives, assessing new markets, and analyzing business opportunities.
Duties:
Plans and directs all aspects of an organization's operational and marketing policies,
objectives, and initiatives.
Develops policies and procedures for operational processes in order to ensure optimization
and compliance with established standards and regulations.
Develops strategies in order to sell company's services to the related industry and businesses.
Conducts financial feasibility studies and develops proposals for new business opportunities.
WAC 0611550632
Page 5
Identifies changes in the marketing environment or competitive strategies and evaluates,
adjusts, or redrafts the organization's marketing plan and philosophy accordingly.
Ensures that the company meets budgeted financial goals and objectives.
Negotiates contracts, initiates proposals, and closes deals.
Communicates organization's objectives to state, city or local government and other
necessary associations.
Demonstrates expertise in a variety of the field's concepts, practices, and procedures.
Relies on extensive experience and judgment to plan and accomplish goals.
Leads and directs the work of all the employees of the company.
Hires and fires employees of the company when necessary.
Performs a variety of tasks.
Reports to the Board of Directors.
The petitioner submitted an organizational chart for the United States operation. The chart shows the
beneficiary at the top of the organization supervising one finance and administration "vice president/section
manager," one data transcription "section manager," and one computer-aided design drafter. The
organizational chart also indicates that the beneficiary serves a computer-aided design draftsman. All other
positions on the chart are listed as "vacant" or "to be hired."
The petitioner also submitted its quarterly wage reports, payroll summaries, and 2005 Forms W-2, W-3, 1096,
and 1099-MISC. Despite the assertions in the organizational chart, these documents indicate that the
petitioner employed only the beneficiary and his spouse, the finance and administration "vice
president/section manager," in the third and fourth quarters of 2005. The instant petition was filed on
February 27,2006. The finance and administration "vice president/section manager" appears to have been a
part-time employee as she was paid a total of $1,575.00 in the fourth quarter of 2005. Furthermore, there is
no evidence in the record that the petitioner employed the data transcription "section manager," Virgil
Sangria, after the second quarter of 2005. He does not appear in the wage reports for the last two quarters of
2005, and there is no evidence that he continues to work for the petitioner in any capacity. Also, while the
petitioner submitted a 2005 Form 1099-MISC for $2,640.00 in income paid to the computer-aided desi
drafter the record is devoid of evidence establishing when in 2005, exactly,
provided these services to the petitioner, whether he still provides services, or whether he WI
services in the future, and, if so, the magnitude or nature of his future commitment to the petitioner.
Finally, the petitioner submitted job descriptions for the subordinate workers. The finance and administration
"vice president/section manager" is described as overseeing the petitioner's financial and administrative
WAC 06 11550632
Page 6
matters and as having a bachelor's degree in civil engineering. The computer-aided design drafter, a
purported independent contractor, is described as performing design related tasks and as having a bachelor's
degree in civil engineering. The data transcription "section manager" is described as performing data
transcription and encoding tasks and as having a bachelor's degree in commerce.
The job descriptions for the subordinate workers also describe the beneficiary's role as "section manager" of
computer-aided design services. These duties are described as follows:
Plans and designs programs and assembles project staffs. Responsible for orgamzmg
activities for the development and implementation of projects. Responsible for the
coordination and completion of projects. Oversees all aspects of projects. Sets deadlines,
assigns responsibilities, and monitors and summarizes progress of project. Prepares reports
for upper management regarding status of project. May negotiate contracts/agreements with
client companies. Familiar with a variety of the field's concepts, practices, and procedures.
Relies on extensive experience and judgment to plan and accomplish goals. Performs a
variety of tasks. Leads and directs the work of others. Reports to the General Manager.
On April 12, 2006, the director requested additional evidence. The director requested, inter alia, an
organizational chart describing all employees under the beneficiary's supervision, which includes job titles,
duties, educational levels, salaries/wages, and immigration status. The director also requested a more detailed
description of the beneficiary's duties in the United States. The director instructed that the petitioner should
"[i]ndicate exactly whom the beneficiary directs including their job title and position description" and should
"[l]ist all employees under the beneficiary's direction." Finally, the director requested that the petitioner
"indicate percentage oftime spent in each ofthe listed duties."
In response, the petitioner submitted the same job description for the beneficiary that was submitted with the
initial petition. The petitioner also submitted the identical organizational chart. While the petitioner
disclosed the salaries of the subordinate staff members, it submitted identical job descriptions. The petitioner
did not indicate the percentage of time spent on each duty. The petitioner also did not further describe the
beneficiary's duties or identify any overseas employees or additional independent contractors under his
supervision and control.
On August 18, 2006, the director denied the petition. The director determined that the petitioner failed to
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, counsel to the petitioner asserts that the beneficiary's duties will be primarily those of an executive
or manager. Counsel argues that the director erred in failing to consider the role of foreign employees and
independent contractors in providing services to clients. Counsel also argues that the director should have
considered the beneficiary's supervision and control of these foreign employees and independent contractors
in assessing whether the beneficiary will primarily perform qualifying duties. Counsel submits a brief and
additional evidence, including a statement addressing the percentage of time to be devoted by the beneficiary
to performing qualifying duties, materials concerning the petitioner's business activities as these relate to the
supervision of foreign staff members, and other evidence addressing the beneficiary's purported supervision
WAC 0611550632
Page 7
of foreign employees, professionals, and independent contractors.
Upon review, the petitioner's assertions are not persuasive.
Title 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 Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. 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. Future hiring
plans or projections of business growth may not be used to qualifY a beneficiary for an extension. A visa
petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary
becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm.
1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner failed to
establish that the United States operation has reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
As a threshold issue, it must be noted that the petitioner's attempt to supplement the record on appeal with
evidence addressing the beneficiary's proposed job duties and his purported supervision of foreign employees
and other workers not previously identified was inappropriate and will not be considered by the AAO on
appeal. As indicated above, the director's Request for Evidence specifically requested that the petitioner
identifY all employees under the beneficiary's direction and describe the job duties of "exactly whom the
beneficiary directs." The director also requested a more detailed description of the beneficiary's duties in the
United States, which includes the "percentage of time spent in each of the listed duties." The petitioner,
however, failed to provide any evidence addressing the foreign employees, or other workers not identified in
the initial petition, purportedly being supervised and controlled by the beneficiary. The petitioner also failed
to provide a breakdown of how much time the beneficiary will devote to performing qualifying duties. On
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its
level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. at 249. A petitioner may not
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See
Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthermore, where 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. The appeal will be adjudicated based on the record of proceeding before
the director.
In view of the above, 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(l)(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 will be either in an executive or managerial capacity. Id. The petitioner must specifically
WAC 06 11550632
Page 8
state whether the beneficiary will primarily be employed in a managerial or executive capacity. As explained
above, a petitioner cannot claim that some of the duties of the position entail executive responsibilities, while
other duties are managerial. A petitioner may not claim that a beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary will develop operational and marketing policies
and be responsible for the planning, organizing, directing, and controlling the operations of the business.
However, the petitioner does not explain what, exactly, the beneficiary will do on a day-to-day basis. The
fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job description
which includes overly broad duties does not establish that the beneficiary will actually perform managerial
duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive
or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir.
1990). 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.
Comm.1972).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him even though this breakdown was specifically requested by the director. 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). This breakdown is particularly important in this matter because many of the
duties listed by the petitioner appear to be non-qualifying administrative or operational tasks which do not rise
to the level of being managerial or executive in nature. For example, the petitioner describes the beneficiary,
in his role as "section manager" of computer-aided drafting services, as planning and designing programs,
negotiating contracts, and performing "a variety of tasks." Furthermore, the petitioner describes the
beneficiary, in his role as president/general manager, as conducting financial feasibility studies, developing
proposals for new business, and directing the petitioner's marketing policies, objectives, and initiatives.
However, marketing, negotiating, performing design services for clients, and conducting studies constitute
administrative or operational tasks when the tasks inherent to these duties are performed by the beneficiary.
As the record fails to identify any employees or contractors who will regularly and predictably relieve the
beneficiary of the need to perform the non-qualifying tasks inherent to the ascribed duties and to the
management of the business in general, it must be concluded that he will perform these tasks. As explained
above, the petitioner has failed to establish the ongoing employment of any employees or independent
contractors other than the beneficiary and his spouse. Thus, as the petitioner has not established how much
time the beneficiary will devote to non-qualifying tasks, it cannot be confirmed that he will be "primarily"
employed as a manager. An employee who "primarily" performs the tasks necessary to produce a product or
to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988). To the contrary, given the nature of the petitioner's business and the lack of a subordinate staff, it must
WAC 0611550632
Page 9
be concluded that the beneficiary will be primarily performing the tasks necessary to provide services to
clients.!
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
it appears that the beneficiary will supervise one part-time worker, the finance and administration "vice
president/section manager," who is also the beneficiary's spouse. As indicated above, the petitioner has not
established that the other workers identified in the organizational chart, the data transcription "section
manager" and the computer-aided drafter, will be employed in any capacity, and their claimed employment
will not be considered. Therefore, in this matter, the petitioner has not established that the finance and
administration "vice president/section manager" will be engaged in performing supervisory or managerial
duties. To the contrary, it appears that this employee will perform the tasks necessary to produce a product or
to provide a service. Furthermore, it must be noted that the supervision or management of independent
contractors will not qualify a beneficiary to be classified as a managerial employee as a matter of law. See
section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2). The Act is quite clear that only the
management of employees may be considered qualifying managerial duties for purposes of this visa
classification.2
In view of the above, it appears that the beneficiary will be primarily a first-line supervisor of a non­
professional employee, the provider of actual services to customers, or a combination of both. A managerial
employee must have authority over day-to-day operations beyond the level normally vested in a first-line
supervisor, unless the supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also
Matter ofChurch Scientology International, 19 I&N Dec. at 604. Moreover, the petitioner has not established
lIt is noted that, even if the additional evidence submitted on appeal was considered by the AAO, this
evidence does not appear probative of the beneficiary primarily performing qualifying duties. The use of
foreign workers abroad to perform professional services for the petitioner's clients still does not clarify who,
other than the beneficiary, will perform the non-qualifying tasks inherent to the marketing duties as well as to
the operation of the business in general. Furthermore, the beneficiary's self-serving affidavit submitted on
appeal in which he claims to devote 55% of his time to "managerial" duties without specifically defining these
duties would not be probative of his being primarily employed in a managerial or executive capacity even if
considered by the AAO. Once again, specifics are clearly an important indication of whether a beneficiary's
duties are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41.
2It is again noted that, even if the additional evidence submitted on appeal was considered by the AAO, this
evidence does not appear probative of the beneficiary supervising and controlling the work of other
supervisory, managerial, or professional employees, or managing an essential function of the organization.
The definition of "intracompany transferee" foresees beneficiaries rendering services to the United States
operation. See 8 C.F.R. § 214.2(l)(1)(ii)(A). Rendering supervisory or managerial services to an overseas
employer, even in conjunction with the provision of services in the United States, is not a qualifying duty
under the Act and the regulations.
WAC 06 115 50632
Page 10
that the beneficiary will manage professional employees.
3
Therefore, the petitioner has not established that
the beneficiary will be employed primarily in a managerial capacity.4
3In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 V.S.c. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. The possession of a bachelor's degree by a subordinate employee or contractor
does not automatically lead to the conclusion that an employee is employed in a professional capacity as that
term is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the drafting, financial, administrative, or data transcription duties ascribed to
the beneficiary's purported subordinates. Furthermore, the petitioner has not established that any of the
claimed employees or contractors has earned the equivalent ofVnited States bachelor's degrees. Once again,
going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. MatterofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190).
4While the petitioner has not clearly argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the tasks related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary will be primarily a first-line supervisor ·of a non-professional employee and/or will be engaged in
performing non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties
would be managerial, nor can it deduce whether the beneficiary will be primarily performing the duties of a
function manager. See IKEA US, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
I
WAC 0611550632
Page 11
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line
supervisor and/or will perform the tasks necessary to provide a service. Therefore, the petitioner has not
established that the beneficiary will be employed primarily in an executive capacity.
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 denying a visa to a multinational manager or executive.
See § 101(a)(44)(C) of the Act; Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D. Ga. 1988). However, it
is appropriate for 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).
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be
"primarily" employed in a managerial or executive capacity as required by the statute. See sections
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.s
SIt is noted that counsel to the petitioner cited the unpublished opinion in Matter ofIrish Dairy Board, A28­
845-42 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as an
executive or manager. In that decision, the AAO recognized that the sole employee of the petitioner could be
employed primarily as a manager or executive provided he or she is primarily performing executive or
managerial duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no
evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision.
While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the
administration of the Act, unpublished decisions are not similarly binding. Second, as explained above, the
petitioner has not established that the beneficiary is primarily employed in an executive or managerial
~apacity. This is paramount to the analysis, and a beneficiary may not be classified as a manager or an
executive if he or she is not primarily performing managerial or executive duties regardless of the number of
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The second issue in the present matter is whether the petitioner has established that it has a qualifying
relationship with the foreign entity.
The regulation at 8 C.F.R. § 214.2(1)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (1)(l)(ii)(G) ofthis section[.]
Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (1)(l)(ii) of this section" and "is or will be doing business." An
"affiliate" is defined in pertinent part as "[o]ne of two subsidiaries both of which are owned and controlled by the
same parent or individual." 8 C.F.R. § 214.2(1)(l)(ii)(L)(l). "Doing business" is defined in pertinent part as "the
regular, systematic, and continuous provision of goods and/or services by a qualifying organization."
In this matter, the petitioner asserts that it is 100% owned by the beneficiary and that it is an affiliate of the
foreign employer, which is 60% owned by the beneficiary. In support, the petitioner provided a variety of
organizational documents, including a stock certificate. The petitioner also asserts that it is, and has been, "doing
business" in the United States.
On April 12, 2006, the director requested additional evidence. The director requested, inter alia, copies of the
petitioner's most recent income tax returns, bank statements for the past year, and the petitioner's lease agreement
for its business premises. The director also requested a copy of the petitioner's California "Notice of Transaction
Pursuant to Corporations Code Section 25102(f)."
In response, the petitioner failed to provide any of the requested documents, and the director denied the petition
on August 18, 2006. The director concluded that the petitioner failed to establish that it has a qualifying
relationship with the foreign entity because the petitioner failed to establish that it is doing business by failing
to submit the requested documentation.
On appeal, counsel submits a copy of the petitioner's tax return dated February 18, 2006, copies of bank
statements, and a copy of a lease. Counsel did not submit a copy of the petitioner's California "Notice of
Transaction Pursuant to Corporations Code Section 25102(f)."
Upon review, the AAO concurs with the director's decision.
As indicated above, 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)(l4). In this matter, the petitioner failed to submit a
copy of its most recent tax return, its bank statements for the past year, and its lease agreement for its business
people employed by the petitioner. Therefore, as the petitioner has not established this essential element, the
decision in Matter ofIrish Dairy Board would be irrelevant even if it were binding or analogous.
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premises, even though this evidence was specificallyrequested by the director. The petitioner's failure to submit
this evidence upon request precluded a material line of inquiry regarding whether the petitioner is and was doing
business in a regular, systematic, and continuous manner. Therefore, the director properly denied the petition.
Furthermore, as explained above, where 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; see also Matter ofObaigbena, 19 I&N
Dec. 533. If the petitioner had wanted the tax return, bank statements, and lease to be considered, it should
have submitted the documents in response to the director's request for evidence. ld. Under the circumstances,
the AAO need not, and will not, consider the sufficiency of the evidence submitted on appeal. The appeal
will be adjudicated based on the record of proceeding before the director. Accordingly, the petitioner has not
established that it and the foreign entity are still qualifying organizations, and the petition may not be
approved for this additional reason.
Moreover, the petitioner failedto submit a copy of its California "Notice of Transaction Pursuant to Corporations
Code Section25102(f)" even though this was also requested by the director. The petitioner's failure to submit this
evidence upon request precluded a material line of inquiry regarding the petitioner's ownership and control as a
California corporation. The regulation and case law confirm that ownership and control are the factors that
must be examined in determining whether a qualifying relationship exists between United States and foreign
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec.
593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18
I&N Dec. 289 (Comm. 1982). Accordingly, the petitioner has not established that it and the foreign entity are
still qualifying organizations, and the petition may not be approved for this additional reason. 8 C.F.R. §
103.2(b)(14).
Beyond the decision of the director and for the same reasons explained above, the petitioner has also failed to
establish that it has been doing business for the previous year as required by 8 C.F.R. § 214.2(l)(14)(ii)(B).
Accordingly, the petition will be denied for this additional reason.
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon
completion of the temporary assignment in the United States. 8 C.F.R. § 214.2(l)(3)(vii).
In this matter, the petitioner claims to be 100% owned and controlled by the beneficiary. As a purported
owner of the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment.
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used
temporarily. 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 (citing Matter of
Treasure Craft ofCalifornia, 14 I&N Dec. 190).
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary
assignment in the United States, the petition may not be approved for this additional reason.
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The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of
proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises. Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.