dismissed L-1A Case: Cleaning Services

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
PUBLIC COpy
identifyingdatadeletedto
preventclearlyua~
invasionfA""'-privacy
FILE: EAC 0619251559 Office: VERMONT SERVICE CENTER Date: OCT 02 ZD07
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(a)(l5)(L)
ON 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 ~ust be made to that office.
obert P. Wiemann,e .
dministrative Appeals Office
www.uscis.gov
EAC 06192 51559
Page 2
DISCUSSION: The Director, Vermont 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 extend its authorization to employ its president and
general manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(IS)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § I 101(a)(15)(L). The petitioner, a Florida corporation,
states that it is engaged in the cleaning and maintenance of swimming pools. The petitioner claims to be an
affiliate of Organizacion Lauras, located in Medellin, Colombia. The beneficiary was initially approved for a
one-year period ofL-IA classification in order to open a new office in the United States. The petitioner now
seeks to extend his status for two additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed by the United.States entity in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary is acting
primarily in a managerial capacity and is not involved in the day-to-day operations of the petitioner's
business. The petitioner asserts that the U.S. company has three employees and submits tax documentation
that was unavailable at the time the petitioner responded to the director's request for evidence.
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)(I)(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 abrQad 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
EAC 06192 51559
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien perfomied abroad.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening of a
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 (1)(I)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined m
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 perform 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 sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity.
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.
EAC 0619251559
Page 4
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 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 nonimmigrant visa petition was filed on June 14,2006. The petitioner stated on Form 1-129 that it has
two employees. In an attachment to Form 1-129, the petitioner described the beneficiary's duties as president
and general manager as follows:
He will be responsible for: I. the general and active discretionary decision making of the
business and affairs of the corporation; 2. presides all the meetings of the shareholders and all
the meetings of the board of directors; 3. shall. execute bonds, mortgages and other
instruments; 4. shall sign certificates of stocks; 5. manage the short and long term fmancial
planning; 6. hire and fire employees; 7. establish general guidelines which must be followed
by employees; 8. represent all the interests of [the petitioning company].
The petitioner submitted a copy of its IRS Form 941, Employer's Quarterly Wage and Withholding Report,
for the first quarter of 2006, which indicates that the company has two employees. The petitioner indicated
that in addition to its two employees, it utilizes "many independent contracts." The petitioner stated that it is
engaged in providing swimming pool cleaning and maintenance services. The AAO notes that, based on the
submitted invoices and an occupational license, the company is also engaged in office and house cleaning
services.
On September 29, 2006, the director issued a request for additional evidence, in which he instructed the
petitioner to submit: (1) evidence to establish the duties performed by the beneficiary in the past year and the
duties he will perform under the extended petition; (2) a list of employees by name and position title; (3) a
complete position description for each employee, including a breakdown of the number of hours devoted to
. each of the employee's job duties on a weekly basis; (3) the amount of time the beneficiary will allot to
executive/managerial duties and non-executive functions; (4) if applicable, evidence documenting the number
of contractors utilized by the petitioner and the duties they perform.
In a response received on December 21, 2006, the petitioner provided the following description of the
beneficiary's duties:
Represent the corporation in its activities - 10%
Administer and manage all business and operations (sales, purchasing, invoicing, collection)
-10%
EAC 06192 51559
Page 5
Identify new opportunities of business - 15%
Comply with the legal obligations of the corporation - 5%
Manage the short and long term fmancial planning - 20%
Establish general guidelines which must be followed and executed by employees - 10%
Manage the organization, primarily supervises and controls the work of others (sic]
employees - 10%
Others, indispensable for the good functioning of the corporation - 5%
Present statements on the results of this operations (monthly and yearly) - 5%
Determines the demand for products and services offered by the firm and its competitors and
identify potential customers; develop pricing strategies with the goal of maximizing the firm's
profit or share of the market while ensuring the firm's customers are satisfied. - 10%
The petitioner stated that the company employs an administrative assistant who performs the following duties:
Plan, direct and coordinate supportive services of an organization, such as record keeping,
mail distribution, invoicing and collection file keeping, oversee facilities planning and
maintenance and custodial operations, coordinates activities of clerical and administrative
personnel, analyzes and organizes office operations, etc.
The petitioner's other claimed employee, a pool service technician, was stated to perform the following duties:
Install and service swimming pools. Assembles and align wall panel sections, edging, and
drain tiles . . .. Lays out and connects pipelines for water inlets, return valves, and filters,
using hand tools. Mixes, pours, spreads, and smooth concrete evenly throughout foundation,
walls, and deck surrounding pool. Installs liner into pool. Assembles heater parts; connects
gas, oil, or electric lines, and starts heater to verify order of unit. Maintain and repairs pool
equipment, advises customers, and sells chemicals to prevent pool water problems.
The petitioner stated that it anticipates an average of four employees "for the coming years," and noted that it
has "hired the services of another company or persons as independent contractors to perform some activities
in high season." Although requested by the director, the petitioner did not describe the duties performed by
contractors or provide documentary evidence of their employment.
The director denied the petition on January 30, 2007, concluding that the petitioner had not established that
the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director found that the petitioner had not adequately documented payments to its two claimed
employees, nor did it substantiate its claim that it utilizes independent contractors to perform certain
functions. The director determined that, based on the petitioner's staffing levels and the beneficiary's
described duties, he would be "doing almost everything involved in the running of the office." The director
found that the U.S. company does not have sufficient staff to allow the beneficiary to act in a primarily
managerial or executive capacity, and emphasized that the company's future hiring plans could not be
considered in determining the beneficiary's eligibility at the end of the new office's first year of operations.
On appeal, the petitioner asserts that the beneficiary is acting in a primarily managerial capacity and is not
involved in the day-to-day operations of the business. The petitioner states that there appears to be a
~-~~-~~ ~-------------------------------------------- I
EAC 0619251559
Page 6
misunderstanding regarding the petitioner's staffing levels, as the company has three employees who allow
the beneficiary to act in a managerial capacity. The petitioner submits evidence of wages paid to the
beneficiary and the two other employees during the last quarter of 2006, noting that such evidence was not
available when the petitioner responded to the director's request for evidence. In addition, the petitioner
emphasizes that the U.S. company's small size should not preclude a finding that the beneficiary is employed
in a managerial capacity.
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary
will be employed in a managerial or executive capacity under the extended petition.
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. § 2l4.2(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.
As noted by the director, 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. The petitioner's initial
description of the beneficiary's position included few duties that the beneficiary would be required to perform
on a regular basis. For example, the petitioner indicated that the beneficiary presides at board of directors
meetings, executes bonds, mortgages and other instruments, and signs stock certificates. While these
responsibilities may be indicative of the beneficiary's authority over the company as its president and sole
shareholder, the AAO is not persuaded that these are among his primary duties on a day-to-day basis.
Specifics are clearly an important indication of whether a beneficiary's duties involve 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 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
The position description submitted in response to the director's request for evidence also lacked sufficient
detail to establish the duties the beneficiary performs on a daily basis, and whether such duties are primarily
managerial or executive in nature. The petitioner's statements that the beneficiary will "represent the
corporation in its activities," "administer and manage all business and operations," "establish general
guidelines," "manage the organization," "comply with the legal obligations of the business," and perform
"others indispensable for the good functioning of the corporation" do not convey any understanding of the
beneficiary's primary duties. Reciting the beneficiary's vague job responsibilities or broadly-cast business
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties.
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of his
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co."
Ltd. v. Sava, 724 F. Supp. at 1108.
Furthermore, although the petitioner indicated that the beneficiary will "administer and manage" the
functional areas of sales, purchasing, invoicing and collection, and manage financial planning, the petitioner
has not claimed to have subordinate employees to perform the non-managerial duties associated with most of
these functions. In addition, the beneficiary's responsibilities for identifying business opportunities,
determining demand for services, and identifying potential customers suggest that the beneficiary is directly
involved in performing market research duties. While performing non-qualifying tasks necessary to produce a
product or service will not automatically disqualify the beneficiary as long as those tasks are not the majority
EAC 06192 51559
Page 7
of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is "primarily"
performing managerial or executive duties. See section 101(a)(44) of the Act.
Overall, the limited job descriptions provided do not establish that the beneficiary will primarily perform in
an executive or managerial capacity as claimed by the petitioner. The AAO will not accept a vague job
description and speculate as to the related managerial or executive job duties. As noted above, the actual
duties themselves will reveal the true nature of the employment. Conclusory assertions regarding the
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at
1108;Aryr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
Without a comprehensive job description of the beneficiary's duties on which to base his determination, the
director reasonably looked to the petitioner's staffing levels in order to determine whether the beneficiary
could be deemed to be serving in a primarily managerial or executive capacity. Pursuant to section
101(a)(44)(C) of the Act, 8 U.S.c. § 1101(a)(44)(C), if staffing levels are used as a factor in determining
whether an individual is acting in a managerial or executive capacity, Citizenship and Immigration Services
(CIS) must take into account the reasonable needs ofthe organization, in light of the overall purpose and stage
of development of the organization. In the present matter, however, the regulations provide strict evidentiary
requirements for the extension of a "new office" petition and require CIS to examine the organizational
structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D). The regulation at 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 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.
There is no indication in this matter that the reasonable needs of the organization were not considered by the
director. On the contrary, it appears the reasonable needs were considered, and the director concluded that the
petitioner was incapable based on its overall purpose and stage of development to support a primarily
managerial or executive position as defined by sections 101(a)(44)(A) and (B) of the Act.
At the time of filing, the petitioner stated that it had two employees, and indicated that it used "many"
independent contractors. A review of all of the payroll documentation submitted, including the evidence
offered on appeal, shows that the petitioner's staff as of June 2006 included the beneficiary and the individual
identified as the administrative assistant. The administrative assistant appears to have been employed on a
part-time basis at a salary of $500 per month. The individual identified as the pool maintenance technician
was hired on or after October 1, 2006, approximately four months after the petition was filed. Evidence of
hiring that occurred subsequent to the filing of the petition and after the beneficiary's one-year period in L-IA
status need not and will not be considered. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978).
Notwithstanding the petitioner's references to its utilization of independent contractors, the record remains
devoid of any evidence identifying these contractors or payments to them. Although this issue was
EAC 06 192 51559
Page 8
specifically addressed in the director's request for evidence and in the decision, the petitioner does not address
its use of contractors on appeal. The failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Furthermore, the petitioner's 2006
IRS Form 1120S, U.S. Income Tax Return for an S Corporation, does not reflect any payments to outside
contractors. 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 ofHo, 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. The petitioner has not established that it was utilizing the services of independent contractors as of
the date the petition was filed.
At the time of filing, the petitioner was a one-year-old company that claimed to be engaged in swimming pool
cleaning and maintenance services. According to the petitioner's invoices, the company also provides home
and office cleaning services. Accordingly, the petitioner reasonably requires employees to meet with
customers to determine and discuss their requirements, provide estimates on costs, schedule customer
services, provide the pool maintenance and housecleaning services, market and sell the petitioner's services,
purchase supplies and equipment, as well as perform bookkeeping, billing, collections, banking, and other
administrative, financial and clerical tasks. Based on the petitioner's representations, it does not appear that
the reasonable needs of the petitioning company might plausibly be met by the services of the beneficiary as
president and general manager and one part-time administrative assistant.
The absence of a subordinate staff sufficient to perform the non-qualifying duties of the petitioner's business
is a proper consideration in the analysis of the beneficiary's employment capacity. See Q Data Consulting,
Inc. v. INS. 293 F. Supp. 25, 29 (D.D.C. 2003). Given the absence of employees who would perform the
non-managerial or non-executive operations of the company, it is reasonable to conclude, and has not been
shown otherwise, that the beneficiary would need to spend a significant portion of his time directly providing
the services of the company and performing other non-qualifying duties associated with the company's day­
to-day operations. 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 Int'/., 19 I&N Dec. 593, 604 (Comm. 1988).
The AAO acknowledges that the record refers to the future objectives of the U.S. operation. However, as
noted above, hiring and business activity that occurs after the date of filing is not probative of the petitioner's
eligibility as of the filing date. The AAO is not required to consider evidence of speculative future activity. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Corom. 1978). The relevant inquiry
is whether the beneficiary will be employed in a primarily managerial or executive capacity in the future,
commencing on the filing date. While the beneficiary may have achieved significant accomplishments toward
establishing the petitioner's operations in the United States, the petitioner has not shown that it has reached
the point that he will be employed in a primarily managerial or executive capacity as of the filing date.
In sum, although the beneficiary evidently exercises discretion over the day-to-day operation of the business
as its president, sole full-time employee, and sole shareholder, the beneficiary has not been shown to
EAC 06 192 51559
Page 9
primarily perform duties associated with the high-level responsibilities identified in the statutory definitions
of managerial or executive capacity. The actual duties themselves reveal the true nature of the employn:Ient.
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. at 1108. The fact that the beneficiary manages a business does not necessarily establish eligibility for
classification as an intracompany transferee in a managerial or executive capacity within the meaning of
sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The petitioner has not
established that the majority of the beneficiary's duties will be primarily directing the management of the
organization or a component or function of the organization.
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily
managerial or executive capacity, as required by 8 C.F.R. § 214.2(1)(3)(ii). For this reason, the appeal will be
dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.
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