dismissed L-1A Case: Beauty Supplies

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U.S.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: SRC 05 159 51031 Office: TEXAS SERVICE CENTER Date: FfB 0. 1 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(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.
~~~~~~ief
Administrative Appeals Office
www.uscis.gov
SRC0515951031
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
presidentlintemational sales manager as an L-1A nonimmigrant intracompany transferee pursuant to section
IOI(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is
a corporation organized under the laws of the State of Florida and is allegedly engaged in the sale of beauty
supplies. The petitioner claims a qualifying relationship with W. France Exotique Center of France.
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 or manager.
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 (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 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.
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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. § 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. § 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 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. Given the ambiguity, the AAO
will consider the appeal as if the petitioner is asserting that the beneficiary will be employed primarily as
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either an executive or a manager.
In a letter dated May 16, 2005 appended to the initial 1-129 petition, the petitioner describes the beneficiary's
job duties as follows:
a. Overseeing the management of the company;
b. Overseeing the hiring of management personnel;
c. Setting long range goals and objectives for the company;
d. Meeting with corporate professionals to further the business, such as corporate counsel,
corporate accountants and other professionals who will help to direct the company's
activities;
e. Contacting clientele and prospective clientele in an effort to build the business; and
f. Analyzing the business to determine that objective and goals [are] being met; and
g. Making sure all custom declarations and procedures are being followed by the management
team.
The petitioner also provided an organizational chart showing the beneficiary at the very top of the
organization supervising a vice president/sales manager who, in tum, supervises two sales representatives, an
office manager/cashier, and a warehouse/delivery employee. However, wage reports for the petitioner reveal
that it only employed two people (the vice president/sales manager and one sales manager) as of December
31,2004.
On June 6, 2005, the director requested additional evidence. The director requested, inter alia, details
regarding the petitioner's employees and tax documents for the petitioner.
In response, the petitioner provided resumes and a wage report from the first quarter of 2005 indicating that
the petitioner employed three people during this time (the vice president/sales manager, the office
manager/cashier, and the warehouse/delivery employee). The petitioner also provided short job descriptions
for each of the employees. The office manager/cashier is described as having primarily clerical and cashier
duties; the warehouse/delivery employee is described as having both sales clerk and delivery responsibilities;
and the vice president/sales manager is described as meeting with officials and customers, receiving orders,
delivering goods, restocking inventory, and participating in staff meetings.
On July 6, 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 or a manager. Counsel to the petitioner also
resolves the discrepancy between the wage reports and the organizational chart by explaining that the
petitioner has three employees and two independent contractors (the sales representatives).
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
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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 will do on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties include overseeing management, setting long-range goals and objectives, contacting
clientele, and analyzing the business. The petitioner did not, however, specifically define these goals and
objectives, or describe with specificity how the beneficiary will perform these duties. Equally important,
some of the vague duties described appear to include operational or administrative tasks. For example,
marketing the petitioner's products to current and prospective customers is not a managerial or executive duty,
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 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).
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
office manager/cashier, warehouse/delivery employee, and sales representatives reveal that these employees
are performing the tasks necessary to produce a product or to provide a service and have no supervisory or
managerial functions. Likewise, the vague job description for the vice president/sales manager fails to
establish that this employee has supervisory or managerial duties. Not only does her job description list
primarily non-qualifying operational or administrative tasks (i.e., product deliveries, receiving orders,
restocking inventory, and sales calls), the petitioner fails to provide a breakdown of how much time is spent
by this employee performing such non-qualifying tasks. 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. Moreover, the job descriptions and
SRC 05 15951031
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resumes provided for the subordinate employees do not establish that they are professionals.' Therefore, the
record does not prove that the beneficiary will be acting in a managerial capacity."
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
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 I01(a)(32) of the Act, 8 U.S.C. § I10I(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 and indicates that he will likely have first­
line supervisor responsibilities, 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. U.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
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beneficiary, who is allegedly managing three 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 the
beneficiary has been employed abroad in a position that was managerial, executive, or involved specialized
knowledge as required by 8 C.F.R. § 214.2(l)(3)(iv).
In a letter dated May 16, 2005 appended to the initial Form 1-129 petition, the petitioner described the
beneficiary's job duties abroad. Except for the management of customs procedures, these job duties are
materially identical to the beneficiary's prospective duties in the United States. In addition, the petitioner
provided job descriptions and organizational materials revealing that the beneficiary supervises four
subordinate employees who perform the tasks necessary to produce a product or to provide a service.
Therefore, given that the beneficiary's job description is just as vague as the description of his prospective
duties in the United States and that he appears, at most, to be a first-line supervisor of nonprofessional
employees, the petitioner has not established that the beneficiary has been employed abroad in a managerial,
executive, or specialized knowledge capacity. For this additional reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
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, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.