dismissed L-1A Case: Award Products Manufacturing

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpenoaalprivacy
PUBLICCopy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: SRC 0522751557
IN RE: Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date:
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)
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.
~_~_._.0' c::.--- ~
Ro e . iemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 227 51557
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 employ the beneficiary as its manager as an L­
1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U .S.C. § llOl(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of New York and is allegedly an importer and manufacturer of award products . The petitioner
claims a qualifying relationship with Mitchell Industries of Haiti as a joint venture partner .I
The director denied the petition concluding that the petitioner did not establish that it has a qualifying
relationship with the foreign entity.
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 asserts that the director erred in denying the
petition because the record establishes that the petitioner has a qualifying relationship with the foreign entity.
Counsel reiterates on appeal that the petitioner has a joint venture relationship with the foreign entity .
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 Forni 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)(1)(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 spec ialized knowledge and that the alien 's prior
education, training, and employment qualifies him/her to perform the intended
'n should be noted that both the record of proceeding and the corporate records of the State of New York
indicate that the proper corporate name for the petitioner is General Awards of New York, Inc.
SRC 05 227 51557
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services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The primary issue in the present matter is whether the petitioner has a qualifying relationship with the foreign
entity. .
The regulation at 8 C.F .R. § 214.2(1)(3) states in pertinent part 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)(1)(ii)(G) of this
section .
8 C.F.R. § 214.2(i)(I)(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)(1)(ii) of this section." While a 'Joint venture" is not listed as one of the
qualifying relationships, a "joint venture" can be a qualifying organization if it meets the definition of one of the
listed qualifying relationships. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986)
(holding that, where each of two corporations (parents) owns and controls 50% of a third corporation (joint
venture), the j oint venture is a subsidiary of each of the parents) .
In a letter dated August 2 , 2005 appended to the initial Form 1-129, the petitioner describes its relationship to
the foreign entity as follows:
[The petitioner] and [the foreign entity] of Port-au-Prince, Haiti (of which [the beneficiaryjis
a Manager) have been in a joint relationship for over 25 years. In 1979, [the founder of the
petitioner] and [the beneficiary] jointly set up [the foreign entity] for the sole purpose of
supplying [the petitioner] with sewn award neck ribbons. These neck ribbons represent
almost 50% of [the petitioner's] annual sales, and [the foreign entity] - under the management
of [the beneficiary] - has been a vital source of this product for our company.
However, because the petitioner provided no evidence of ownership or control of the foreign entity or the
petitioner , the director requested additional evidence on August 29, 2005. Specifically, the director requested
documentary evidence of the ownership of both the foreign entity and the petitioner, such as stock certificates
and articles of incorporation .
•
res onse, counsel to the petitioner provided a copy ofa letter dated July 27, 1979 indicating tha_
llegedly the founder of the petitioner, was appointed "president" of the foreign entity's board of
rectors. Counsel also explained in his letter dated September 28, 2005 that the foreign entity "was a
corporation owned by itself." Counsel further explained that the petitioner's financial statement submitted
with the initial petition establishes that the petitioner "is a corporation owned by itself ." While not discussed
by counsel, the petitioner's Forms 11~0'Schedul ubmitted with the . . ... .. t 51% of
the petitioner's stock is owned b (25.5%) and (25.5%).
However, the petitioner did not provide copies 0 any stock certificates or other organizational documents for
'.
SRC 0522751557
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the petitioner or the foreign entity.
On November 3, 2005 , the director denied the petition. The director concluded that the petitioner did not
establish that it has a qualifying relationship with the foreign entity.
On appeal, counsel asserts that the record establishes that the petitioner has a qualifying relationship with the
foreign entity. Counsel reiterates that the petitioner has a joint venture relationship with the foreign entity .
Counsel further argues that, ·because the foreign entity depends entirely on the petitioner's business, the
petitioner "controls" the foreign entity.
Upon review, the petitioner's argument is not persuasive.
The regulations 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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter of Siemens Medical Systems, Inc ., 19 I&N Dec. 362; 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.
In this matter, the petitioner has not established that it has a qualifying relationship with the foreign entity.
The petitioner has not established that it has the legal right of possession of the assets of the foreign entity nor
has it established that it has the direct or indirect legal right and authority to direct the operations or
management of the foreign entity. As explained above, the petitioner has not provided copies of any
organizational documents for the foreign entity or the petitioner, i .e., stock certificates, articles or
incorporation, resolutions, bylaws, or minutes. The only evidence in the record of ownership and control of
either entity is the petitioner's Forms 1120 which identify two people who collectively own 51 % of the
petitioner's stock. Not only does the petitioner fail to provide any evidence regarding the ownership and
control of the foreign entity , the petitioner's unsubstantiated assertion that_owns and/or
controls the foreign entity would not establish a qualifying relationship with ~eownership
and control of the petitioner apparently presently rests with two different individuals . Regardless , evidence
tha_ is, or was, the president of the foreign entity does not establish that he or the petitioner
"controls" or "owns" the foreign entity ; rather, this simply establishes that, in 1979, he was an officer of the
foreign entity, which is not evidence of ownership or control. Overall , the record does not establish that the
petitioner and the foreign entity have a qualifying relationship, and the petition may not be approved for that
reason.
As indicated above, a "joint venture" can be a qualifying organization provided it meets the definition of a
parent, subsidiary, affiliate, or branch. See Matter of Siemens Medical Sy stems, Inc., .19 I&N Dec. 362 .
However, the petitioner has not provided any evidence establishing that the foreign entity has-a qualifying
relationship with the petitioner as a "joint venture" or otherwise . The fact that the director did not specifically
request information regarding the alleged "joint venture," which is simply the petitioner's characterization of
its business relationship with the foreign entity, is immaterial given that the director did request evidence
SRC 0522751557
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regarding the ownership and control of both the foreign entity and the petitioner.
Moreover, counsel's assertion that the foreign entity 's economic dependence on the petitioner establishes
"control" over the foreign entity is without merit. As explained above, the concepts of ownership and control
concern the legal right to possession of assets and to d irect management. Even if the petitioner has economic
power over the foreign entity as its primary customer, this does not establish any legal right to possession of
assets or to direct the foreign entity's management.
Accordingly, the petitioner has not established that it has a qualifying relationship with the foreign entity , and
the petition may not be approved for that reason.
Beyond the decision of the director, a related matter is whether the petitioner has established that the
beneficiary will be employed in the United States primarily in an executive or managerial capacity as required
by 8 C.F.R. § 214.2(l)(3)(ii) or that the beneficiary has been employed abroad in an executive or managerial
capacity as required by 8 C.F.R. § 2l4.2(l)(3)(iv).
Section 101(a)(44)(A) of the Act, 8 U.S.C . § I I01 (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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § IIOI(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;
SRC 05 227 51557
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(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 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 .
In the initial petition, the petitioner failed to provide detailed job descriptions for the beneficiary's position
abroad and prospective position in the United States. On August 29, 2005, the director requested detailed
descriptions of the two positions. In a letter dated September 13, 2005 provided in response to the Request
for Evidence, the petitioner described the beneficiary's job duties abroad and prospective job duties in the
United States. As this letter is in the record, these job descriptions will not be repeated here.
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) and (iv) , 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. [d. 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 has acted or 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 or will do on a day-to-day basis. For example , the
petitioner states that the beneficiary's duties primarily include "budgeting" and "overseeing production ." The
petitioner did not , however, specifically explain what the beneficiary has done , or will do , to carry out these
duties. 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
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). In view of these vague job descriptions, it cannot be determined whether the beneficiary has been
or will be employed primarily in a managerial capacity or whether he is performing, or will peform, the tasks
necessary to provide a service or to produce a product. 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
SRC 05 227 51557
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"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N at 604.
The petitioner also failed to establish that the beneficiary is supervising and controlling , or 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 organizational charts for both
entities, these charts fail to describe the dut ies, skill levels , or educational backgrounds of the subordinate
employees. In view of the above, the beneficiary would 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. Therefore, the record does not prove that the beneficiary will be acting , or has acted , in a
managerial capacity .
Similarly, the petitioner has failed to prove that the beneficiary has been acting, or 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 , whose duties have been vaguely described and who appears to be a first-line supervisor,
will be acting primarily in an executive capacity.
Accordingly, the petitioner has not established that the beneficiary will be primarily employed in the United
States in an executive or managerial capacity as required by 8 C .F.R. § 214.2(l)(3)(ii) or that the beneficiary
has been employed abroad in an executive or managerial capacity as required by 8 C .F.R. § 214.2(l)(3)(iv),
and the petition may not be approved for these additional reasons .
An application or petition that fails to comply with the technical requ irements 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 theAAO 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 discret ion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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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. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.