dismissed L-1A Case: Automobile Sales

identifying data deleted t-o
prevent clearly unwarranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 117 51091 Office: TEXAS SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
fEB 01 zoe:!
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 11 01(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.
(.~3:r~::.;;.;··
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC05 11751091
Page 2
DISCUSSION: The Director, Texas 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 sales manager as
an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § ll01(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Texas and is allegedly engaged in the business of pre-owned automobile sales. The petitioner
claims that it is the subsidiary of Instituto Alpha Learning, C.A. of Venezuela. 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 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 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, the petitioner asserts that the director erred in
denying the petition, because the record establishes that the beneficiary will be employed primarily as an
executive.
To establish eligibility for the L-1 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.
(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
SRC 05 117 51091
Page 3
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
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 (l)(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 primary 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. § 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
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
SRC 05 117 51091
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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.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act or primarily executive duties under
section 101(a)(44)(B) of the Act. A beneficiary may not claim to 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. While on appeal counsel to the petitioner appears to narrow her argument and asserts that the
beneficiary will be employed as an executive, the petitioner never clearly abandons its claim that the
beneficiary will be employed as a manager. Given the ambiguity, the AAO will consider the appeal as if the
petitioner is asserting that the beneficiary will be employed primarily as an executive or, in the alternative, as
a manager.
In a letter dated March 15, 2005 appended to the initial 1-129 petition, the petitioner describes the
beneficiary's job duties as follows:
In the United States, [the beneficiary] will continue to fill the position of Sales Manager. In
his capacity, he will continue to utilize his managerial experience and knowledge of [the
foreign entity's] policies and procedures for Sales and Marketing operations. He will exercise
complete control and discretion over all sales activities, head and administrate the well
functioning of sales department, design and follow-up to the sales politics [sic], lead
periodical meetings with the salespeople, and keep general sales statistics by group or
salesperson. Additionally, [the beneficiary] will expand the sales division at a rate
compatible with our company's realized growth over the next year. He will set company
sales goals in cooperation with our company's President [and] will monitor the sales
division's progress toward meeting these goals. [The beneficiary] will be responsible for
evaluating the performance of all employees in the sales division, and he will have the power
to employ and terminate employment of those working for the company.
The petitioner also provided wage reports indicating that the petitioner had four employees at the end of 2004
and an organizational chart showing the beneficiary supervising a sales representative and administrative
assistant and reporting to the president of the petitioner.
SRC 05 117 51091
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On March 29, 2005, the director requested additional evidence. The director requested, inter alia, detailed
job descriptions for the beneficiary and his subordinate employees and tax returns for the petitioner.
In response, the petitioner provided a more detailed job description for the beneficiary as follows:
Planning Corporate Sales & Marketing Activities
Direct the sales and marketing policies of the company's auto sales business in the United
States. Set the company sales goals in cooperation with the company's President and the
parent firm in Venezuela and monitor the sales division's progress toward meeting these
goals. Review and sign leases, bills of sale and sales contracts. Review, sign and file the
necessary documents required by regulatory agencies and courts.
(Average Time Spent: 25%)
General Administration of the Sales and Marketing Functions
Exercise complete control and discretion over all sales activities, head and administrate the
well functioning of sales department, design and follow-up to the sales policies, lead
periodical meetings with the salespeople, and keep general sales statistics by group or
salesperson. Be responsible for supervision and evaluating the performance of all employees
in the sales division, and have the power to employ and terminate employment of those
working. Direct the purchase of goods, services, materials and supplies required by the
company. Compare catalogue listings, examine products, attend demonstrations of products
and conventions, calling for quotations, negotiating prices and contract terms, evaluating
alternative offers and making choices of suppliers, vendors and distributors. Attend auctions
for the acquisition of vehicles. Review and sign contracts and other documents with vendors
for purchase of autos.
(Average Time Spent: 40%)
Market Research & Business Development Activities
Expand the sales division at a rate compatible with the corporation's realized growth. Survey
the market for autos, assess the requirements of the customers and clients, and evaluate the
market potential at various geographical locations as also within specific customer groups.
Develop marketing strategies for effective sale of products and services. Research the
advertising and promotional activities of the company to promote sales of products and
services and to attract more customers. Select pricing for products to attract potential buyers
and to maintain a regular flow of clientele. Analyze competitors' data to forecast trends.
Represent the corporation in trade fairs.
(Average Time Spent: 350/0)
SRC0511751091
Page 6
The petitioner also provided job descriptions for the two supervised employees, the sales representative and
the administrative assistant. The sales representative is described as being engaged primarily in selling
automobiles to customers. The administrative assistant is described as providing clerical and bookkeeping
support.
On July 11, 2005, the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary will be employed primarily as an executive.
Upon review, the petitioner's assertions are not persuasive. Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the
intended United States operation one year within the date of approval of the petition to support an executive
or managerial position. There is no provision that allows for an extension of this one-year period. If the
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position as defined by law.
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 are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary is primarily 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 beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner has failed to prove 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 does on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties include setting sales goals, developing marketing strategies, and promoting sales. The
petitioner did not, however, specifically define these goals or marketing strategies. Equally important, many
of the duties described include operational or administrative tasks such as acquiring automobiles at auctions,
recording sales, and attending trade fairs. Such duties are not managerial or executive duties, and Citizenship
and Immigration Services (CIS) cannot determine whether the beneficiary is primarily employed as a
manager or executive absent a detailed breakdown of how much time the beneficiary will spend performing
such non-qualifying tasks. 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). 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). Specifics are clearly an important indication of whether a beneficiary's duties are primarily
SRC 05 117 51091
Page 7
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), afj'd, 905 F.2d 41 (2d.
Cir. 1990).
The petitioner also failed to prove that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that he will manage an essential function within the
organization. While the petitioner did supply an organizational chart, the job descriptions provided for the
subordinate employees, i.e., the sales representative and the administrative assistant, reveal that these
employees are performing the tasks necessary to produce a product or to provide a service and that they have
no supervisory or managerial functions. The beneficiary would thus appear to be a first-line supervisor, the
provider of actual services, or a combination of both. A managerial or executive 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. The job descriptions provided for the subordinate employees do not
establish that they are professionals. I Therefore, the record does not prove that the beneficiary will be acting
in a managerial capacity?
lIn 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 U.S.C. § Il0l(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).
2While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless does not support this position. 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 duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job
description, which includes operational and administrative tasks, fails to document what proportion of the
beneficiary's duties would be managerial functions and what proportion would be non-managerial. 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 is
primarily performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. of Justice, 48 F.
SRC 05 117 51091
Page 8
Similarly, the petitioner has failed to prove 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. As indicated above, the petitioner has failed to prove that the
beneficiary, who is allegedly managing two employees who are apparently engaged in providing services to
customers, will be acting primarily in an executive capacity.'
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, a related issue is whether the petitioner has established that it still has a
qualifying relationship with the foreign entity.
The regulation at 8 C.F.R. § 2 I 4.2(l)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Supp. 2d 22, 24 (D.D.C. 1999).
3As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs
of the organization, in light of the overall purpose and stage of development of the organization. To establish
that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development.
In the present matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise
justify the beneficiary's performance of non-managerial or non-executive duties. 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).
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). The reasonable needs of the petitioner may justify
a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent,
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying
duties.
SRC 05 117 51091
Page 9
Form 1-129 shall be accompanied by:
(A) Evidence that the United States and the foreign entity are still qualifying
organizations as defined in paragraph (l)(l)(ii)(G) of this section[.]
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 (l)(1)(ii) of this section." A "subsidiary" is defined, in part, as a corporation
"of which a parent owns, directly or indirectly, half of the entity and controls the entity."
In the initial Form 1-129 petition, the petitioner purports that the foreign entity owns 100% of the petitioner,
thus establishing, if true, a parent/subsidiary relationship. In support of this contention, the petitioner
provided a stock certificate issuing 10,000 shares of stock in the petitioner to the foreign entity. The
petitioner also provided a copy of its articles of incorporation, as amended, in response to the request for
evidence, which authorizes the issuance of 10,000 shares of stock. The petitioner did not provide any other
organizational materials for the petitioner.
The petitioner also provided, as requested by the director, a copy of its 2004 Form 1120. While the petitioner
did indicate in Schedule K to the Form 1120 that more than 500/0 of its voting stock was owned by one entity
or person and that at least one foreign person from Venezuela owned at least 25% of the petitioner's voting
stock, the petitioner did not attach the schedule revealing the name of the majority owner or reveal the exact
percentage of stock owned as required by Schedule K, Question 5.
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 of Hughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates, and articles of
incorporation alone are not sufficient evidence to determine whether a stockholder maintains ownership and
control of a corporate entity. The corporate bylaws and the minutes of relevant annual shareholder meetings
must also be examined to determine the total number of shares issued, the exact number issued to the
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit,
the management and direction of the subsidiary, and any other factor affecting actual control of the entity.
See Matter ofSiemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, CIS is
unable to determine the elements of ownership and control.
In this case, as the petitioner failed to supply this evidence, the petitioner has failed to establish the existence
of a qualifying relationship. Moreover, the petitioner failed to provide a complete copy of its 2004 Form
SRC 05 117 51091
Page 10
1120 as requested by the director by omitting the schedule identifying the owner of the majority of the
petitioner's shares. 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). Accordingly, the petitioner has not established that
the petitioner and the foreign entity are qualifying organizations as required by 8 C.F.R. §§ 214.2(1)(3) and
214.2(l)(14)(ii)(A), and the petition will also be denied for this reason.
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), aff'd, 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 the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.