dismissed L-1A Case: Carpet Import/Wholesale

Identifyingdatadeletedt6
preventclearlyunwarranteel
invasionofpersonalprivacy
PUBLIC COpy
U.S. DepartlIlentof Homeland Secority
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services .
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File: WAC 05 027 50346 Office: CALIFORNIA SERVICE CENTER Date: APR 0 5 ..
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. § 1101(aXI5)(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.
---~-~Robetfr:""WIemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 027 50346
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 manager as an L­
IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly a carpet importer and wholesaler. The petitioner claims a qualifying
relationship with Jyoti International, located in India. The beneficiary was granted a one-year period of stay
to open a new office, which was subsequently extended for an additional two years. The petitioner now seeks
to extend the beneficiary's stay for an additional three years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner 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 and that the record establishes
that the beneficiary will be primarily employed in a managerial capacity. In support of its appeal, the
petitioner submits a brief and additional evidence.
To establish eligibility for the L-I 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)(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 himlher to perform the intended
WAC 05 027 50346
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.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial capacity.
Section lOl(a)(44)(A) of the Act, 8 U.S.c. § 1l01(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.
In the initial petition, 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. The director considered both classifications because the petitioner
occasionally used the word "executive" when describing the beneficiary. On appeal, counsel asserts that the
beneficiary is employed primarily in a managerial capacity and specifically states that the petitioner is not
seeking to classify the beneficiary as an executive. Therefore, the AAO will limit its consideration of the
appeal to whether the beneficiary will be employed primarily in a managerial capacity.
In a letter dated November 4, 2004 appended to the initial 1-129 petition, the petitioner described the
beneficiary'sjob duties as follows:
Beneficiary, as manager/executive of petitioner company, directs the management of the
company, establishes goals and policies of the organization in relation to finance, freight
forwarding, and product and services development that the company provides to its customers
in the international markets. He does this by exercising independent decision-making and by
managing the work of professionals who work under him either as employees or independent
WAC 05 027 50346
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contractors [citation omitted].
Beneficiary has been granted authorization by the Board of Directors of Petitioner company
to Hire and Fire Personnel as Beneficiary deems necessary for the successful operation of the
company. Based upon this authority, Beneficiary has hired and manages a local team of
professional employees who assist Beneficiary in achieving Petitioners [sic] laid out goals
[citation omitted].
The petitioner further explained that the beneficiary signed leases on behalf of the business; manages
.employees and independent contractors; analyzes market trends, market opportunities, and oversees
implementation of marketing plans; established two showrooms; established "strategic business ~lationships"
with more than 35 wholesalers and an exclusive distribution relationship with a retailer; Clesigned and
oversaw the establishment of the petitioner's internet sales website; forecasts trends and designs which has
influenced six new rug collections; negotiated distribution rights for a brand of rug pad; and is developing a
home furnishings line.
The petitioner also provided a copy of its organizational chart which shows the beneficiary reporting to a
"managing director" and directly supervising two marketing employees, an accounting-administration
employee, an accountant, a customs broker, and a bank officer. While the accounting-administration
employee is shown supervising "In House Sales and Warehouse," it is not clear if this is referring to an
employee.
The petitioner further describes the employees supervised by the beneficiary in the letter dated November 4,
2004. The marketing employees, described in the letter as "marketing executives," appear to have duties
relating directly to the marketing and sale of merchandise. One of the marketing employees,
is described as having a university degree, and the petitioner asserts that he is a professional employee. The
accounting-administration employee is described as providing accounting support and is alleged also to
possess a foreign university degree and to be a professional. Finally, the petitioner asserts that the beneficiary
supervises the work of a variety of "outside professionals," identified as an accountant, a customs broker, and
a bank officer.
On December 13, 2004, the director requested additional evidence. Specifically, the director requested
further evidence regarding the petitioner's ownership and control, a more descriptive organizational chart, job
descriptions for subordinate employees, wage reports, and a more detailed job description for the beneficiary.
In response, counsel to the petitioner provided a letter dated March 4, 2005, an organizational chart which
materially differs from the chart appended to the initial petition, and wage reports. In the letter, counsel
provides an identical job description for one of the marketing employees, The other
marketing employee, _ has been omitted from both counsel's letter and the organizational chart.
'While counsel spelled the employee's name _inhis letter dated March 4, 2005, the petitioner
spelled his name'_ in the letter dated November 4, 2004. However, it appears that the two
variations refer to the same employee.
WAC 05 027 50346
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Counsel now identifies the second marketing employee as_Counsel does not explain when Ms.
_ commenced her employment with the petitioner, but the wage report for the quarter which includes the
date upon which the current petition was filed does not list_ as an employee. Counsel's letter and
the new organizational chart also identify a third marketing employee who was not listed in the supporting
documents attached to the initial petition. This third marketing employee is also not listed as an employee in
the attached wage reports. The wage reports reveal that, as of the fourth quarter of 2004, the petitioner
employed the beneficiary, the two marketing employees and two
employees who are not identified elsewhere in the supporting documentation.
Counsel also provides a breakdown of how much time the beneficiary devotes to each of his duties.
According to counsel, the beneficiary devotes 35% of his time to the management of the company, 20% of his
time managing professionals, 5% of his time hiring and firing employees, and 40% of his time exercising
discretion over the day-to-day operations of the management of the company.
On August 8, 2005, the director denied the petition. The director determined that the petitioner failed to
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 and that the record establishes that the beneficiary will
be primarily employed in a managerial capacity. Specifically, counsel reiterates the regulations and argues
that the beneficiary is not primarily engaged in performing marketing duties; that the beneficiary manages
professionals; that the beneficiary primarily manages "the organization as a whole entity;" and that the
management of personnel is only a "small function" of the beneficiary's larger role of managing the petitioner.
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look fITst to the
petitioner's description of the job duties. See 8 c.F.R. § 2l4.2(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.ld.
The petitioner 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 does on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties include directing the management of the company and establishing goals and policies.
However, the petitioner failed to specifically explain what the beneficiary does to direct the management of
the company or to specifically defme what goals and policies have been established. Equally important, those
aspects of the beneficiary's job which have been described with some specificity will inevitably involve non­
qualifying administrative or operational tasks which would require a subordinate staff for the beneficiary to
avoid performing those tasks necessary to perform these duties. For example, establishing showrooms,
running a website, designing rugs, and marketing to customers are all identified as duties of the beneficiary;
however, the petitioner does not explain how, or by whom, these duties are performed. An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be
WAC 05 027 50346
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"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 (Corom. 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. Corom. 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 establish that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or manage an essential function within the organization.
While the petitioner did supply an organizational chart, the job descriptions provided for the subordinate
employees, i.e., the marketing employees and the accounting-administration employee, reveal that these
employees are performing the tasks necessary to produce a product or to provide a service and appear to have
no supervisory or managerial functions. Although the accounting-administration employee is shown
supervising the "In House Sales and Warehouse," this accounting-administration employee's job description
does not describe him as having a supervisory function, and the wage reports for the petitioner do not even list
this person as an employee. 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 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 604.2
Moreover, the job descriptions provided for the subordinate employees, i.e., the marketing employees and the
accounting-administration employee, do not establish that they are professionals. In 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. § 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 ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N
Dec. 686 (D.D. 1966).
2As explained above, the petitioner provided a materially different organizational chart in response to the
Request for Evidence as well as job descriptions for employees who were not identified in the initial petition
and who appear not to have been employees at the time the petition was filed. The AAO will only consider
the organizational chart and employee roster in effect at the time the petition was filed. The petitioner must
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
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Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defmed above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to do the jobs of the marketing employees or the accounting-administration
employee. While counsel on appeal submits evidence that two other employers in Internet job postings have
stated that they prefer applicants to have a bachelor's degree for positions which the petitioner claims are
similar to its marketing employees' positions, the evidence presented does not indicate that a degree is
required for entry into the field of endeavor generally, i.e., international rug sales; that these job postings are
for positions truly similar to the petitioner's vaguely described positions; what field of study is required for the
other positions or that the petitioner's employees possess the same or a related degree; or that the other
employers would reject an experienced candidate solely because he or she lacked a degree. Therefore, as the
petitioner has not established that a baccalaureate degree is necessary for entry into the field of endeavor, the
petitioner has not established that the beneficiary manages professional employees.
Additionally, the petitioner cannot rely on the beneficiary's supervision of "outside professionals," identified
by the petitioner as an accountant, a customs broker, and a bank officer, in establishing that he supervises and
controls professional employees. First, the record is devoid of any evidence that the beneficiary realistically
supervises or controls these service providers or independent contractors. While undoubtedly the petitioner,
like most all businesses, has purchased professional services from accountants and banks, this does not
establish that the beneficiary supervises and controls the work of professionals. These persons are
independent contractors who perform a service in exchange for a fee. While the petitioner may be a customer
or client of these contractors, there is no evidence that it controls the time, place, and method by which these
services are provided. Second, the petitioner may not as a matter of law use the supervision of non­
employees to establish that the beneficiary supervises and controls professionals. Section 101(a)(44)(A)(ii)
expressly limits the definition of "managerial capacity" to professional employees. Independent contractors
are not employees. Therefore, even if the beneficiary was established to be supervising and controlling these
professionals, this supervisory function could only be used to classify the beneficiary as a manager if the
professionals are employees of the petitioner.
3
3Finally, on appeal, counsel to the petitioner asserts that the beneficiary manages the "organization" as a
whole entity. While counsel does not expressly argue that the management of the organization constitutes the
management of an "essential function," the record nevertheless would not support such a classification. 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(1)(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.
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It is appropriate for Citizenship and Immigration Services (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).
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
capacity as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary had been
employed abroad in a managerial or executive capacity or in a position which involved specialized
knowledge. 8 C.F.R. § 2l4.2(1)(3)(iv). In support of its petition, the petitioner has provided a vague and
nonspecific description of the beneficiary's duties abroad that fails to demonstrate what the beneficiary did on
a day-to-day basis. 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. Specifics are clearly an important indication of whether a beneficiary's duties were primarily executive
or managerial in nature or involved specialized knowledge; otherwise meeting the definitions would simply
be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905
F.2d41.
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. The prior approvals do not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was successful in the
past in petitioning for the beneficiary, the director properly denied the petition in this case.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. As
explained above, the petitioner's vague job description fails to document what proportion of the beneficiary's
duties would be managerial and what proportion would be non-managerial. Moreover, without any
explanation as to who performs the non-qualifying administrative and operations tasks inherent in performing
many of the beneficiary's duties, the petitioner has not established that a majority of the beneficiary's time is
dedicated to performing managerial duties. Absent a clear and credible definition of the beneficiary's duties,
the AAO cannot determine what proportion of the duties would be managerial, nor can it deduce whether the
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. of
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
•
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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.
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