dismissed L-1A Case: Cabinetry And Natural Stone

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PUBLICCOfll"lt:
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.$. Citizenship
and Immigration
Services
File: SRC 05 15450238 Office: TEXAS SERVICE CENTER Date: .'My 0 12007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 110I(a)(l5)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
...-----.---=:::L~. _
Robert P~n, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 15450238
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 petition seeking to employ the beneficiary as its "director of
operations" to open a new office in the United States 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, a corporation organized under the laws of the State of Florida, claims to be
engaged in the cabinetry and natural stone business and alleges a qualifying relationship with ~
The director denied the petition concluding that the petitioner failed to demonstrate that sufficient physical
premises have been secured to house the new office.
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 it adequately established
that it has secured sufficient physical premises to house the United States operation. In support of the appeal,
counsel submitted a letter and additional evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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)
(ii)
(iii)
(iv)
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.
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.
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.
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
SRC 05 154 50238
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive. or managerial position as
defined in paragraphs (l)(l)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its fmancial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The primary issue in this matter is whether the petitioner has established that sufficient physical premises to
house the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
,
In the initial petition, the petitioner provided a "rental agreement" dated March 31, 2005 with AA Alpine Storage
- LW n. This month-to-month agreement purports to rent a 9 foot by 20 foot "storage space" to the petitioner to
be used "only for the storage of property wholly owned by Tenant" for $169.81 per month plus tax. The
petitioner also provided a business plan in which it states its goal of hiring three employees during its first year in
operation and that it "will be engaged in the design, production, installation, maintenance and restoration of
general purpose cabinetry and natural stone complimentary products." The petitioner described its location needs
only as "a single facility over an industrial district near to 1-95 in Lake Worth, FL."
On June 11, 2005, the director requested additional evidence. The director requested, inter alia, "a copy of the
lease or other evidence that [shows] premises sufficient to house the new operation have been secured." In
response, the petitioner simply resubmitted the identical "rental agreement" appended to the initial petition. The
SRC 05 15450238
Page 4
petitioner provided no other evidence regarding the sufficiency of the "storage space" or clarifications regarding
its proposed use of the space.
On October 19, 2005, the director denied the petition concluding that the petitioner had not established that
sufficient physical premises to house the new office had been secured. The director stated the following:
With the initial petition, the petitioner submitted a copy of [a] rental agreement for a 9 [by] 12
space in a self storage facility. It was unclear how the u.s. company could conduct business on
a daily basis out of a storage unit. It was unclear how that could be viewed as sufficient physical
space to house the operations which the petitioners [sic] states will include hiring 4 additional
workers. In response to a Request for Additional Evidence, the petitioner again submitted a
copy of that same rental agreement. As stated, that is not sufficient evidence that [the] petItioner
has secured sufficient physical space.
On appeal, the petitioner asserts that the location in question is not a "self storage facility" a~d that the premises
"allow people to safely and appropriately work inside." In support of the appeal, the petitioner submits additional
evidence, including photographs and a letter from the landlord. .
Upon review, the petitioner's argument is not persuasive.
. As a threshold issue, the additional evidence submitted for the first time on appeal regarding the sufficiency of
the "storage space" will not be considered. The petitioner was put on notice of a deficiency in the evidence
and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The
petitioner failed to submit additional evidence regarding the sufficiency of the secured premises in response to
the Request for Evidence and now submits it for the first time on appeal. However, the AAO will not
consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted this evidence to be considered, it
should have submitted it in response to the director's Request for Evidence. The appeal will be adjudicated
based on the record of proceeding before the director.
As explained above, the petitioner has submitted a lease for a 9 by 12 self-storage unit as evidence that it has
secured sufficient physical space to house the new office. This lease is for a month-to-month term and limits
the use of the space to the storage of the petitioner's property. As the petitioner has submitted no evidence
that this space would sufficiently house its cabinetry and stone business, which will employ approximately
four people, the petitioner has not established that it has secured sufficient physical premises. 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 (Comrn. 1998) (citing Matter of Treasure Craft
of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). It is simply not credible that the space as described in
the "rental agreement" ~ould sufficiently house the business as described by the petitioner.
Accordingly, the petitioner has not established that sufficient physical premises to house the new o~fice have
been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A), and the petition may not be approved for that
reason.
SRC 05 15450238
Page 5
Beyond the decision of the director, another issue is whether the petitioner has established that the beneficiary had
been employed primarily as a manager or executive abroad as required by 8 C.F.R. § 214.2(1)(3)(v)(B).
Title 8 C.F.R. § 214.2(l)(3)(v)(B) requires that the petitioner establish that the "beneficiary has been
employed for one continuous.year in the three year period preceding the filing of the petition in an executive
or managerial capacity and that the proposed employment involved executive or managerial authority over the
new operation."
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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § I 101 (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 ofthe 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 have been primarily
SRC 05 15450238
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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. However, in the letter dated September 2,2005, the foreign entity describes
the beneficiary's position abroad as "managerial." Regardless, a beneficiary may not claim to have been
employed as a hybrid "executive/manager" andrely 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 assume that the petitioner is asserting that the
beneficiary has been primarily employed as a manager or, alternatively, as an executive, and will consider
both classifications.
In response to the director's Request for Evidence which sought further information regarding the
beneficiary's e~ployment abroad, the foreign entity provided a letter dated September 2, 2005 which
described the beneficiary's duties overseas as follows:
• Working cooperatively with lawyers and accountants in the implementation and
structure of the company since its inception, for which he dedicates 10% of his time;
• Responsible for hiring and training sales, technical personnel for customer oriented
service: in charge of hiring, firing, and applying disciplinary measures as situation
arises, for which he dedicates 10% of his timer;]
• Prepare and analyze internal and technical reports. This includes identifying time
frames for employees' task and preparing times [sic] sheets for the payroll, analyzing
employee's performance, for which he spends 25% of his timer;]
• Developing strong relationships with suppliers, VAR partners and executive decision
makers of Ecuadorian and international companies, for which he spends 10% of his
time;
• Implementing sales and marketing plans including the organization and deployment
of country level trade shows and technology expositions, for which he dedicates 5%
of his time;
• Compliance with normative qualification level of the company, for which he
dedicates 5% of [his] time;
• Sales opportunity analysis including developing of the sale plan to which he
dedicates 20% of his time;
• Attending sales meetings with management to set and adjust established goals for
which he dedicates 10% of his time;
• Attending new products and technologies awareness seminars for which he dedicates
5% of his time[.]
The foreign entity also asserts that the beneficiary supervises nine people. In support of this assertion, the
petitioner provided an organizational chart showing the beneficiary supervising a sales staff, a technical
manager, and technicians. The petitioner also provided brief job descriptions for the subordinate employees.
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
SRC 05 154 50238
Page 7
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 cl~im 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 establish that the beneficiary supervises and controls the work of other
supervisory, professional, or managerial employees, or manages an essential function within the organization.
As explained in the organizational chart and the job descriptions for both the beneficiary and the subordinate
employees, the beneficiary appears to primarily be engaged in supervising a four-person sales staff. While
one of the beneficiary's subordinate employees, the "senior sales" employee, has been described as a
"supervisor," the petitioner failed to establish that this employee is primarily engaged in performing
supervisory or managerial duties. To the contrary, the "senior sales" employee appears to be engaged in
performing the same tasks related to providing a service or producing a product as the other sales
representatives, and the beneficiary's supervision of the "senior sales" employee cannot be distinguished from
his supervision of all of the other sales employees. Therefore, the beneficiary appears to be a first-line
supervisor of a sales staff. 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. 593, 604
(Comm. 1988). As the record is devoid of evidence regarding the educational or skill1evels of the sales staff,
it also cannot be concluded that these employees are professionals.\
Moreover, while the organizational chart describes the beneficiary as supervising a "technical manager," who,
in turn, supervises four employees, the beneficiary's job description does not specifically include any duties
related to this purported function. As explained· above, the beneficiary appears primarily dedicated to
supervising a sales staff, and his supervision of the "technical department" is either an immaterial part of his
job or was invented for purposes of this petition. Also, as implied by the dotted line on the organizational
chart labeled ' it appears that the "technical manager" and his staff are not
even employees 0 t e oreign entity. This is confirmed by the absence of the "technical manager" from the
payroll rosters appended to the initial petition. As the supervision of independent contractors cannot be used
to fulfill the requirement that the beneficiary manage employees, the beneficiary's supervision of 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 101(a)(32) of the Act, 8 U.S.C. § 11 01(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 ~f 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).
SRC 05 15450238
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"technical manager" and his staff, even if accurate, would not establish that he supervises and controls the
work of other supervisory, professional, or managerial employees. Therefore, it has not been established that
the petitioner has been working primarily in a managerial capacity?
Similarly, the petitioner has failed to establish that the beneficiary has been employed abroad 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 Io1(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 has been acting primarily in an executive
capacity. As explained above, the beneficiary appears to be primarily employed as a first-line supervisor.
Therefore; the petitioner has not established that the beneficiary is employed primarily in an executive
capacity.
Accordingly, the petitioner did not establish that the beneficiary has been employed for one continuous year
in the three year period pr,eceding the filing of the petition in an executive or managerial capacity as required
by8 C.F.R. § 2l4.2(l)(3)(v)(B), and for this 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
.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 ~f the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 2l4.2(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. As explained above, the record
establishes that t~e beneficiary is primarily a first-line supervisor of non-professional employees. Therefore,
the AAO cannot conclude that the beneficiary is primarily performing the duties of a function manager. See
IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
SRC 05 15450238
Page 9
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 (B.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 is on the petitioner to establish eligibility for the benefit sought.
.Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed: