dismissed L-1A Case: Business Conglomerate

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PUBLICCOpy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: WAC 05 01651082 Office: CALIFORNIA SERVICE CENTER Date: AUG 06 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)(l5)(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;;bert~
Administrative Appeals Office
www.uscis.gov
WAC 0501651082
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/chief
executive officer 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. § 1101(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of California. The petitioner describes itself as a "conglomerate" which
will "own and operate an import and export division, rental property management division, and residential
care facility." 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 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, counsel to the petitioner asserts that the beneficiary's
duties are primarily those of an executive or manager. Counsel asserts that the director erred in not
considering the purpose and stage of the petitioner's development and that a "presumption of approvability
exists for a manager/executive petition filed by a petitioner for the same beneficiary of a previously approved
L-l petition." In support of this contention, counsel refers to a 1989 legacy Immigration and Naturalization
Service (INS) memorandum. Telex from James A. Puleo, Assistant Commissioner for Adjudication, to all
INS field officers, CO 214L-P (Jan. 13, 1989) (hereinafter Puleo Telex).
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 0501651082
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 himlher 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. § 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)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l )(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perforrn 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. § 1I01 (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 0501651082
Page 4
(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 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.
The petitioner described the beneficiary's job duties in a letter dated September 5, 2003 appended to the initial
petition. As this letter is in the record, its contents will not be repeated here. Generally, the petitioner
describes the beneficiary as occupying the "highest managerial position" in the company and as directing the
petitioner's finances, policies, and marketing activities. The petitioner also submitted an organizational chart
for the United States operation. However, as the chart is described as a "hiring plan" and fails to reveal the
identity of any employees, it is unclear whether this chart actually represents the current staffing of the
organization. Finally, the petitioner submitted payroll records, including quarterly wage reports which
indicate that the petitioner employed four people, including the beneficiary, during the second quarter of
2004. The instant petition was filed on October 21,2004.
On January 7, 2005, the director requested additional evidence. The director requested, inter alia, a detailed
organizational chart for the petitioner which reveals the names, positions, and job descriptions for each
employee and copies of the petitioner's wage reports.
In response, the petitioner provided an organizational chart which shows the beneficiary at the top of the
organization supervising 10 staff members. The petitioner identifies these 10 staff members and provides
brief job descriptions for each. However, the petitioner also provided wage reports, which indicate that,
during the third quarter of 2004 (the quarter immediately preceding the quarter in which the instant petition
WAC 05 016 51082
Page 5
was filed), the petitioner employed only the beneficiary and the clerical staff member described in the
organizational chart as "secretary." According to the wage reports, at no point during the third or fourth
quarters of 2004 did the petitioner employ anyone other than the beneficiary and the secretary. The petitioner
offers no explanation for this fundamental inconsistency.
On August 5, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive or
manager. Counsel asserts that the director erred in not considering the purpose and stage of the petitioner's
development and that a "presumption of approvability exists for a manager/executive petition filed by a
petitioner for the same beneficiary of a previously approved L-1 petition." In support of this contention,
counsel refers to the 1989 Puleo Telex regarding the significance of erroneously approved L-1 petitions in
denying a multinational manager or executive immigrant petition.
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. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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'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 establishes and implements policies and
procedures, oversees the company's finances, and is responsible for the "coordination of activities and
operations with regard to the funds under [her] control." However, the petitioner does not explain what
policies and procedures will be established or implemented, what the beneficiary will do in "overseeing" the
company's finances, and what operations or activities will be coordinated. The fact that the petitioner has
given the beneficiary a managerial title and has prepared a vague job description which includes lofty duties
does not establish that the beneficiary will actually be performing managerial duties. Specifics are clearly an
WAC 0501651082
Page 6
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 ofCalifornia, 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 her. This 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 states that the beneficiary creates
budgets, conducts studies, "manages" marketing and advertising, and develops branding and public relations
plans. These vaguely described duties appear to be administrative or operational tasks essential to the
petitioner's business. As the petitioner has not established how much time the beneficiary will devote to such
non-qualifying tasks or to explain who, exactly, will perform the non-qualifying tasks inherent to these
functions if not the beneficiary, it cannot be confirmed that she is "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 ofChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
Finally, the petitioner has not established that it employs a subordinate staff which could relieve the
beneficiary of the need to perform the non-qualifying tasks inherent to the petitioner's business. As indicated
above, it appears that the beneficiary will supervise one secretary. While the secretary may relieve the
beneficiary of the need to engage in basic clerical tasks, this employee is not described as performing the
other non-qualifying tasks inherent to the many duties ascribed to the beneficiary in the job description.
Therefore, based on the record, the petitioner does not appear to employ a subordinate staff which could
relieve the beneficiary of the need to perform non-qualifying tasks.
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, the beneficiary appears to
supervise one employee, a secretary. The petitioner has not established that this clerical employee is
primarily engaged in performing supervisory or managerial duties. To the contrary, it appears that this
employee is performing tasks necessary to produce a product or to provide a service. In view of the above,
the beneficiary would appear to be primarily a first-line supervisor of a non-professional clerical employee,
the provider of actual services, 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Moreover, the petitioner has not established that the secretary is a
"professional" employee.
1
Therefore, the petitioner has not established that the beneficiary will be employed
primarily in a managerial capacity.'
lIn evaluating whether the beneficiary manages a professional employee, the AAO must evaluate whether the
subordinate position requires a baccalaureate degree as a minimum for entry into the field of endeavor.
WAC 0501651082
Page 7
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 be acting 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, the beneficiary appears to be primarily employed as a first-line
Section 101(a)(32) of the Act, 8 U.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).
2While the petitioner has not specifically argued that the beneficiary manages 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 duties 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 primarily be a first-line manager of a non-professional employee and/or is performing the
tasks related to the function. Absent a clear and credible breakdown of the time spent by the beneficiary
performing her duties, the AAO cannot determine what proportion of her duties would be managerial, nor can
it deduce whether the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc.
v. us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
WAC 0501651082
Page 8
supervisor and/or is performing tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
Although 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), 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). The reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to
sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established this
essential element of eligibility.
Moreover, the size of a company may be especially relevant when CIS notes discrepancies in the record and
fails to believe that the facts asserted are true. See, e.g., Systronics Corp. v, INS, 153 F. Supp. 2d at 15. In
this matter, the record contains several inconsistencies regarding the number of people employed by the
petitioner. As explained above, the wage reports covering the time frame during which the instant petition
was filed confirm that the petitioner employed only the beneficiary and a secretary. While earlier wage
reports indicate that the petitioner may have employed up to four individuals at certain times during the
second quarter of 2004, the petitioner never explains why it purports to employ eleven people in the
organizational chart yet filed wage reports claiming only two employees. It is incumbent upon the petitioner
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the
remaining evidence offered in support of the visa petition. Id. at 591.
Finally, counsel's argument that a "presumption of approvability exists for a manager/executive petition filed
by a petitioner for the same beneficiary of a previously approved L-l petition" is without merit. Counsel's
reliance on the Puleo Telex is misplaced because this memorandum was rescinded in 1996. See Memo. from
Associate Commissioner, to Regional Directors, HQ 70/6.1.3-P (July 3, 1996).
egar ess, e u eo memorandum does not provide guidance regarding petitions to extend L-l A petitions
and would be inapposite to the current petition even if it had not been rescinded over 10 years ago. Also, the
initial approval of an L-IA new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of the petitioner's qualifications. Texas A&M Univ., 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.
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.
WAC 0501651082
Page 9
Beyond the decision of the director, the petitioner claims that the beneficiary is the sole owner of both the
foreign entity and the petitioner. If this fact is established, it remains to be determined that the beneficiary's
services are for a temporary period. The regulation at 8 C.F.R. § 214.2(l)(3)(vii) states that if the beneficiary
is an owner or major stockholder of the company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred to an
assignment abroad upon the completion of the temporary services in the United States. In the absence of
persuasive evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that
he will be transferred to an assignment abroad upon completion of his services in the United States. For this
additional reason, the petition may not be approved.
In addition, another issue is whether the petitioner has established that it has a qualifying relationship with the
foreign entity. The record is devoid of any evidence of the ownership or control of the petitioner. The record
does not contain a stock certificate or other evidence which could support the petitioner's claims and establish
the ownership or control of the petitioner. 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 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.