dismissed L-1A Case: Cleaning Services

identifying data deleted to 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3000 
Washington, DC 20529 
- 
prevent clear;) unwarranted 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
Services 
pumc COPY 
File: WAC 04 201 53363 Office: CALIFORNIA SERVICE CENTER Date: 0 'm 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 1 01(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
G/-.czx=- 
Robert P. iemann, Chief 
Administrative Appeals Office 
WAC 04 201 53363 
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 general manager 
as an L- 1 A nonirnmigrant intracompany transferee pursuant to section 10 1 (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 engaged in the business of providing residential and commercial 
cleaning services. The petitioner claims a qualifying relationship with Confites, Inc., located in the 
Philippines. The beneficiary was initially granted a one-year period of stay to open a new office in the United 
States and was subsequently granted a two-year extension. The petitioner now seeks to extend the 
beneficiary's stay for an additional two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has been 
or 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 in that the record establishes 
that the beneficiary performs executive and managerial duties by managing the organization and by 
supervising and controlling the work performed by subordinates. The petitioner also asserts that the 
beneficiary is not a first-line supervisor, because the beneficiary's subordinates are professionals. 
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. 9 214.2(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. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
WAC 04 201 53363 
Page 3 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnlher 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 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. 5 1 101(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. 5 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 
WAC 04 201 53363 
Page 4 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act, and implies in its appeals that the beneficiary is acting as both. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the 
petitioner is indeed representing the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. 
In a letter dated July 2, 2004 appended to the initial 1-129 petition, the petitioner described the beneficiary's 
job duties as follows: 
[The beneficiary] will continue to fill the position of General Manager for the U.S. entity. 
In this senior managerial capacity she will be in control of the overall operations of the 
business and arrange the strategy and conduct of the business. 
[The beneficiary] currently heads a team of 7 workers who are managed by- 
=,] the Operations Manager[,] an-,] the Housecleaning Supervisor 
and Operations Assistant. All day-to-day duties are organized and completed by Mr. 
mnd staff. [The beneficiary] is the key senior manager in charge of 
managing the functions of the business that deal with expansion and marketing of [the 
petitioner]. 
The petitioner also supplied an organizational chart showing the beneficiary at the top of the organization and 
supervising the operations manager who, in turn, manages the housecleaning supervisor who, in turn, 
supervises several housecleaners. 
On October 12, 2004, the director requested additional evidence. The director requested that the petitioner 
provide evidence establishing that the beneficiary will be performing managerial or executive duties 
including, inter alia, a detailed description of the beneficiary's duties; a description of the duties of the 
subordinate employees; and evidence that the beneficiary supervises and controls the work of other 
supervisory, professional, or managerial employees, or manages an essential function within the organization. 
In response, the petitioner provided a more detailed list of job duties for the beneficiary: 
-Financial Statement Analysis[.] 
-Oversee the overall financial health of the business and is the only person who is able to 
make decisions regarding the commitment of capital, assumption of credit, expansion and 
final marketing issues. 
-Develop both short and long term plans and programs together with supporting budget 
requests and financial estimates. 
WAC 04 201 53363 
Page 5 
-Develop marketing strategies for the year[.] 
-Spearheaded the launch of company website, which few competitors have 
[(]www.neatandtidy.net[).] 
-Corporate branding; implemented uniforms for company recognition, launched website 
in 2002, joined trade fairs for the San Fran Apartment Association to promote company 
name. Revised company logo, all marketing materials reflect new company logo and 
name recognition. 
-Conceptualized business policies and procedures (human resources, customer guidelines 
and policies[)]. 
-Re-negotiate pricing contracts with various suppliers such as liability insurance, 
workers compensation, yellow page advertising. 
-To oversee operations and coordinate with the foreign owners on issues of finance, 
banking, marketing and expansion. [The beneficiary] as part of management duties 
communicates directly with foreign owners on updates on business plan, capitalization, 
financial health status and management issues. 
-Monitor the effectivity [sic] of marketing programs in meeting objectives and 
recommend corrective measures/alternative programs when necessary. 
-Through the Operations Manager; enforces the hiring of new personnel, promotion and 
salary increases as well as any disciplinary action necessary for employees that fail to 
follow company policies and procedures. 
The petitioner also provided a more detailed description of the duties of the "operations manager" and the 
"housecleaning supervisor and operations assistant." The "operations manager," a part-time employee at the 
time the petition was filed, was described as having the following duties: 
-Enforce company policies on operations, human resources. 
-Recruit new employees. 
-Train new employees according to company policy and procedures and the code of 
guidelines. 
-Prepare target sales figures for each month[.] 
-Handle employee issues such as performance appraisals. 
-Talk to decision makers of large corporate accounts to solicit janitorial contracts. 
-Prepare marketing programs[.] 
-Prepare sales reports to General Manager[.] 
WAC 04 201 53363 
Page 6 
The "operations manager" is also described as having a college degree. 
The "housecleaning supervisor and operations assistant," who also allegedly has a college degree, was 
described as having the following duties: 
-Monitors quality control in all homes and offices (regular inspections to ensure 
customer satisfaction)[.] 
-Prepares daily schedules for all staffl.] 
-Maintains inventory of all supplies[.] 
-Provide in-home estimates for new clients[.] 
-Assists Operations Manager with his daily duties[.] 
-Handle all billing for corporate, individual accounts. 
-Log customer complaints and prepare[s] a report to Operations Manager[.] 
Finally, the petitioner supplied an updated organizational chart materially identical to the chart provided with 
the initial petition. 
On March 17, 2005, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary has been or will be employed in the United States in a primarily managerial or 
executive capacity. 
On appeal, the petitioner asserts that the director erred in that the record establishes that the beneficiary 
performs executive and managerial duties by managing the organization and by supervising and controlling 
the work performed by subordinates. The petitioner also asserts that the beneficiary is not a first-line 
supervisor because the beneficiary's subordinates are professionals. 
Upon review, petitioner's assertions are not persuasive. 
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. 8 214.2(1)(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. 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 has failed to prove that the beneficiary will act in a "managerial" capacity. In support of its 
application, 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 financial forecasting, developing plans and programs, marketing, attending 
WAC 04 201 53363 
Page 7 
trade shows, and negotiating contracts with suppliers. 
 The petitioner did not, however, define the 
beneficiary's plans or programs, her management of marketing activities (other than spearheading the 
establishment of a website and attending trade shows), or her financing forecasting. 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). 
While counsel to the petitioner asserts that the beneficiary does not perform actual cleaning duties, it is 
obvious that there are non-managerial duties associated with a business of the scope described by the 
petitioner in addition to cleaning homes and offices. While the record may indicate that cleaning services are 
performed by others, the evidence submitted fails to establish who, other than the beneficiary, is performing 
the additional functions incidental to operating the business and, importantly, what percentage of her time is 
dedicated to these non-managerial duties. For example, the evidence indicates that the beneficiary attended 
trade fairs, spearheaded the establishment of a website, negotiated insurance and advertising contracts, and 
arranged for yellow pages advertising for the business. These are administrative or operational tasks, not 
managerial or executive duties, and it is essential that the petitioner establish what percentage of the 
beneficiary's time is dedicated to performing such non-qualifying duties. 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). 
Likewise, the petitioner does not explain who, other than the beneficiary, performs the clerical work 
incidental to the management of the business, i.e., administering accounts payable. Such duties are not 
included in the job descriptions for the subordinate employees, who appear primarily engaged in managing 
the housecleaners. 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). 
Overall, the petitioner's vague job description fails to realistically define the beneficiary's duties in a way that 
would allow one to ascertain which functions are managerial and what functions would be non-managerial. 
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 spent managing the organization, nor can it deduce 
whether the beneficiary is primarily performing the duties of a function manager or primarily managing other 
supervisory, professional, or managerial employees. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 
2d 22,24 (D.D.C. 1999). 
Therefore, the record does not prove that the beneficiary is acting primarily 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 
WAC 04 201 53363 
Page 8 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. As indicated above, the petitioner has failed to prove that the 
beneficiary, who is apparently engaged in a variety of non-managerial, clerical duties, will be acting primarily 
in an executive capacity. 
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). 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the foreign entity, Confites, Inc., of the Philippines. 
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. 
8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity 
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate 
or subsidiary specified in paragraph (l)(l)(ii) of this section." An "affiliate" is defined, in part, as "[olne or two 
legal entities owned and controlled by the same group of individuals, each owning and controlling approximately 
the same share or proportion of each entity." 
In the initial Form 1-129 petition, the petitioner purports that a group of five individuals in the Philippines 
owns and controls both the petitioner and the foreign entity and that these individuals own and control 
approximately the same share or proportion of each entity. In support of this allegation, the petitioner 
provided copies of stock certificates (#2 through #6) issuing a total of 50,000 shares to the five individuals in 
the Philippines; copies of the petitioner's articles of incorporation authorizing the issuance of 1,000,000 
shares; wire transfer documentation establishing that the foreign entity wired the petitioner $46,077.18 in 
April 2001; minutes from a meeting of the petitioner's incorporators dated January 12, 2001 authorizing the 
issuance of stock in the same proportion as evidenced by the proffered stock certificates; and the bylaws of 
the petitioner. The petitioner also provided documentation establishing that the same individuals who 
allegedly own stock in the petitioner own proportionate shares in the foreign entity. 
WAC 04 201 53363 
Page 9 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
In this case, the petitioner failed to supply copies of its stock certificate ledger or corporate minutes (other 
than the original incorporator minutes from January 2001). This is particularly important since the petitioner 
is authorized to issue 1,000,000 shares of stock, the stock certificates indicate that 50,000 shares have been 
issued, and the issuance of stock began with certificate #2, not certificate #I. Given the petitioner's failure to 
provide any corporate documents subsequent to its establishment in late 2000 and early 2001, the AAO is 
unable to ascertain the current ownership and control of the petitioner and, thus, the petitioner has not 
established that it has a qualifying relationship with the foreign entity. For this additional reason, the petition 
may not be approved. 
Accordingly, the petitioner has not established that the petitioner and the foreign entity are qualifying 
organizations as required by 8 C.F.R. 5 214.2(1)(3). 
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. 5 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 AM 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. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve an application or petition where eligibility has not been 
demonstrated merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS or any agency must 
WAC 04 201 53363 
Page 10 
treat acknowledged errors as binding precedent. Sussex Engr. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6" 
Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
In this case, not only was there material and gross error in determining that the beneficiary was serving in a 
primarily executive or managerial capacity for the reasons outlined above, but there was material and gross 
error in determining that a qualifying relationship exists between the petitioner and the foreign entity. 
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. 200 I), 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 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. 
Finally, based on the reasons for the denial of the instant petition, a review of the prior L-1 nonimmigrant 
petitions approved on behalf of the beneficiary is warranted to determine if they were also approved in error. 
Therefore, the director shall review the prior L-1 nonirnrnigrant petitions approved on behalf of the 
beneficiary for possible revocation in accordance with 8 C.F.R. $ 2 14.2(1)(9). 
ORDER: The appeal is dismissed. 
FURTHER ORDERED: 
 The director shall review the prior L-1 nonimmigrant petitions approved on 
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. fj 
214.2(1)(9).