dismissed L-1A Case: Clothing Distribution

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preventclearlyunw8lTlDt8d
invasionofpII'IODI1priVIDJ
PUBLICCOP'l
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm.A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 06 099 50031
IN RE: Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date: S£f 12 2001
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)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R~
Administrative Appeals Office
www.uscis.gov
WAC 06 09950031
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on May 3, 2007, the AAO
rejected the appeal as untimely. On June 4, 2007, the petitioner filed a motion to reconsider the AAO's
decision. The motion will be granted and the AAO will reconsider its decision. In lieu of addressing the
timeliness of the underlying appeal, the AAO will address the merits of the appeal. Upon a full review of the
record, the AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its vice president as
an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Delaware and is allegedly in the business of selling and distributing clothing. The beneficiary
was initially granted a one-year period of stay to open a new office in the United States, and the petitioner
now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director
erred and that the beneficiary will primarily perform qualifying duties. Counsel also submits a brief and
additional evidence, including documents addressing the alleged employment of subordinate workers and
letters from third parties attesting to the beneficiary's proposed executive employment.
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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
WAC 06 099 50031
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(1)(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 (l)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(1)(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 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. § 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
WAC 06 099 50031
Page 4
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary will 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. On appeal, counsel submits letters from third parties addressing the beneficiary's
claimed employment in an "executive" capacity. A petitioner may not claim that a beneficiary will be
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. Given
the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed
either as an executive or a manager and will consider both classifications.
The petitioner described the beneficiary's proposed job duties in the United States in the Form 1-129 as
follows:
[F]ully responsible for directing petitioning U.S. entity, through subordinate personnel; the
beneficiary would be responsible for overall U.S .. sales and marketing operations of the
products, managing the planning and implementation of the overall sales strategies
nationwide, overseeing the marketing and promotional activities nationwide. Oversight of
customs and regulatory compliance; and oversight of all accounting, banking and financial
matters.
The petitioner also submitted an organizational chart for the United States entity. The chart shows the
beneficiary reporting to the petitioner's president and directly supervising a warehouse manager, an
accountant, an office manager, a delivery incharge employee, a sales representative, and a personal business
banker. The chart does not reveal the identities of the warehouse manager and the sales representative. Also,
the unidentified sales representative is portrayed as supervising two independent contractors.
Finally, the petitioner submitted its California wage reports. The most recent wage report submitted is for the
WAC 06 099 50031
Page 5
third quarter of 2005. The instant petition was filed on February 7, 2006. This wage report only lists the
president, the office manager, and the delivery incharge worker as employees. The other workers identified
in the organizational chart are not listed in the most recent wage report submitted for the petitioner.
On February 20, 2006, the director requested additional evidence. The director requested, inter alia, a list of
all employees in the United States; a more detailed organizational chart for the petitioner which identifies all
employees, a description of the employees' job duties, educational levels, and immigration status in the United
States; a more recent wage report; and a more detailed description of the beneficiary's proposed duties in the
United States which includes a breakdown of how much time the beneficiary will devote to each duty.
In response, counsel submitted a letter dated May 8, 2006 in which she describes the beneficiary's proposed
duties as follows:
Through the U.S. subsidiary, under the guidance of the [beneficiary] , the company is
planning to acquire a larger share of the U.S. market than the one it had, before it had
established a physical presence in the United States. During his assignment in the U.S., [the
beneficiary] will essentially perform the same duties he performed in the Philippines and will
maintain broad discretion over the manner in which his duties are carried out. He will
oversee the managing, developing and directing of all phases of the establishment and
expansion of the business operations of the U.S. subsidiary, and will direct its operations in
analyzing market trends and economic conditions to forecast potential purchases and sales,
conduct the general administration affairs of the company in the marketing the products of
the company, and will engage in long-range planning and identifying new business
opportunities and new international markets. He will direct all business operations through
the activities of the company's managers and professionals; he will be overseeing and in [sic]
directing all contract negotiations and the implementation of all company policies; and will
ultimately [be] responsible for all hiring and firing; for making executive decisions on the
day[-]to[-]day operations; as well as having oversight on all accounting, customs, banking
and financial matters.
[The b]eneficiary will oversee and direct all phases of the establishment and expansion of the
activities of [the petitioning organization] through the United States and Canada. [The
beneficiary] will oversee and direct the firm establishment, development and expansion of the
U.S. subsidiary, on the East Coast of Canada and the U.S., by establishing a new branch in
Florida, which, after its establishment, will be the Regional Office for the East Coast of the
U.S. and Canada. [The beneficiary] will also oversee efforts to increase its sales to Puerto
Rico, where the company already has a few clients, and to establish new retail boutiques, the
Carribean [sic] which are situated on the most popular tourist routes.
As stated above, [the b]eneficiary will have broad latitude and discretion in the performance
of his duties of planning, formulating, and implementing the company's administrative and
operational policies and procedures; and of establishing operational goals and policies ; of
analyzing market trends and economic conditions to forecast potential purchases and sales; he
WAC 06 099 50031
Page 6
will be responsible for the general administration of the affairs and marketing the service
activities of the company. He will be responsible for long-range planning and identifying
business opportunities and international markets; will direct the business activities through
the work of managers and professionals; [w]ill direct managerial personnel in the negotiation
of contracts and implementation of all policies; [w]ill be responsible for hiring and firing,
making executive decisions on the day[-]to[-]day operations, and will have oversight of all
accounting, customers, banking and financial matters; and hiring and firing of all employees
and contracting independent sales, marketing, import managers, transportation managers,
warehousing managers and advertising companies, etc. etc. etc.. [sic] Reports only to the
President of the [p]etitioner of the foreign, Philippines parent company.
Counsel also indicated in the May 8, 2006 letter that it is "not feasible" to provide a breakdown of how much
time the beneficiary will devote to each of his many duties because of the changing needs of the business.
The petitioner also submitted a materially different organizational chart for the United States operation. The
new organizational chart now specifically identifies the "warehouse manager" as _ The new chart
also identifies the "accountant" as and indicates that this worker superv~the
individual identified as the "accountant" in the original organizational chart. _ is also
described as an independent contractor. Finally, the chart adds a bookkeeper and indicates that this worker is
supervised by the accountant, I
Furthermore, the petitioner submitted a wage report for the fourth quarter of 2005. Once again, this wage
report only lists the president, the office manager, and the delivery incharge worker as employees. The other
workers identified in the organizational chart are not listed in this wage report. While the petitioner did
submit Forms 1-9 and W -4 for the warehouse manager, the accountant, and the bookkeeper as evidence of
their employment, these documents all indicate that these workers were hired after the filing of the instant
petition on February 7, 2006. Therefore, the record indicates that the petitioner employed only the president,
the office manager, and the delivery incharge worker as of the petition's filing date. While the petitioner
described the "sales representatives" as independent contractors, which should not be listed as employees in
the wage reports, the petitioner failed to establish when the representatives began working for the petitioner,
how they are compensated, or how much time the representatives spend performing sales tasks for the
petitioner.
Finally, the petitioner submitted job descriptions for the subordinate workers. Both the office manager and
the delivery incharge worker are described as performing the tasks necessary to produce a product or to
provide a service, e.g., clerical and delivery tasks.
On May 23, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, counsel asserts that the director erred and that the beneficiary will primarily perform qualifying
duties. Counsel also submits a brief and additional evidence, including documents addressing the alleged
employment of subordinate workers and letters from third parties attesting to the beneficiary's proposed
WAC 06 099 50031
Page 7
executive employment.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension even if the
petitioner has plans to expand its business and to hire additional employees. A visa petition may not be
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible
under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the United States operation has not
reached the point that it can employ the beneficiary in a predominantly managerial or executive position and
is ineligible for an extension.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties
will be either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary will primarily be 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 petitioner may not claim that a beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions.
Upon a review of the job descriptions provided by the petitioner, the petitioner's descriptions of the
beneficiary's job duties have failed to establish that the beneficiary will act in a "managerial" capacity. In
support of its petition, the petitioner has provided vague and nonspecific descriptions of the beneficiary's
duties that fail to demonstrate what the beneficiary will do on a day-to-day basis. For example, the
beneficiary is described as "directing" the petitioner, as engaging in "long-range planning and identifying
business opportunities and international markets," and as "planning, formulating, and implementing the
company's administrative and operational policies and procedures." However, the petitioner fails to describe
these policies and procedures or to explain what, exactly, the beneficiary will do in "directing" the petitioner
or in engaging in long-range planning. The fact that the petitioner has given the beneficiary a managerial title
and has prepared a vague job description which includes overly broad duties does not establish that the
beneficiary will actually perform managerial duties. 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). 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).
WAC 06 099 50031
Page 8
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him even though this was requested by the director. This is particularly important in
this matter because many of the duties listed by the petitioner appear to be non-qualifying administrative or
operational tasks which do not rise to the level of being managerial or executive in nature. For example, the
beneficiary is generally described as directing and being responsible for the marketing of the petitioner's
products as well as the "expansion" of the petitioner's business activities. He will also "direct" the petitioner's
operations and oversee "contract negotiations and the implementation of all company policies." However,
duties involving marketing, business expansion , and negotiating contracts constitute administrative or
operational tasks when the tasks inherent to these duties are performed by the beneficiary. As the
organizational chart and job descriptions for the subordinate employees fail to identify any employees or
contractors who will relieve the beneficiary of the need to perform the non-qualifying tasks inherent to both
the marketing duties and the management and expansion of the business in general, it must be concluded that
he will perform these tasks. As the petitioner has not established how much time the beneficiary will devote
to such non-qualifying tasks, it cannot be confirmed that he will be "primarily" employed as a manager or
executive. An employee who "primarily" performs the tasks necessary to produce a product or to provide
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988).
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)(l4).
As explained above, the record indicates that the petitioner employed a president, an office manager , and a
delivery incharge worker as of the petition's filing date . The petitioner's claimed employment of a warehouse
manager, bookkeeper, and accountant after the filing of the petition is not relevant to these proceedings. 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. Since the beneficiary will report to the president , only the
office manager and the delivery incharge worker would be available to assist the petitioner in performing the
many duties ascribed to him . As these two workers are described as performing either basic clerical tasks or
processing deliveries and shipments, the record is not persuasive in establishing that anyone other than the
beneficiary would be available to perform the many non-qualifying tasks related to his marketing, business
expansion, and general administration duties. Furthermore, while the petitioner asserts that it employs a
variety of independent contractors including sales representatives, a personal business banker, and an
accountant, it is unclear how these workers would relieve the beneficiary of the need to perform the non­
qualifying tasks related to his duties. Not only do the descriptions of these contractors fail to list the non­
qualifying tasks in question, the petitioner has failed to establish when the contractors began working for the
petitioner , how they are compensated, or how much time the contractors spend performing services for the
petitioner. Once again, 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 . Overall, based on the evidence presented , it is more likely than not that both the beneficiary
and his staff will primarily perform non-qualifying tasks. See generally Family, Inc. v. U.s. Citizenship and
Immigration Services, 469 F.3d 1313 (9 th Cir. 2006).
WAC 06 099 50031
Page 9
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
it appears that the beneficiary will supervise a staff of two employees and, indirectly, the provision of certain
specialized services by four contracted service providers. However, the petitioner has not established that the
two subordinate employees are primarily engaged in performing supervisory or managerial duties. To the
contrary, it appears that these employees are performing the tasks necessary to produce a product or to
provide a service, e.g., clerical and deliveries tasks. Also , the supervision or management of independent
contractors will not permit a beneficiary to be classified as a managerial employee as a matter of law. See
section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2). The Act is quite clear that only the
management of employees, not independent contractors, may be considered to be a qualifying duty for
purposes of this visa classification. Finally, as explained above, the petitioner's employment of subordinate
workers after the filing of the instant petition is not relevant to these proceedings . 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.
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional
employees, 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the educational
background or skill level required to perform the duties of the two subordinate positions, the petitioner has not
established that the beneficiary will manage professional employees.' The petitioner also did not reveal the
immigration status of the petitioner's other employees even though this evidence was requested by the
director. 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)(l4). Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.'
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. § IIOI(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, II I&N Dec. 686 (D.D. 1966).
2While the petitioner has not argued that the beneficiary will manage 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
WAC 06 099 50031
Page 10
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will perform the tasks necessary to produce a
product or to provide a service and/or will act as a first-line supervisor. Finally, given that the beneficiary
will report to the president of the petitioner and that the president is described as overseeing the petitioner's
"business planning and expansion efforts," it is not credible that the beneficiary, the proposed vice president,
would have any realistic authority to direct the management, or establish the goals and policies, of the
organization.
It is noted that, on appeal, counsel submits letters from third parties concluding that the beneficiary will be
employed in an executive capacity. Upon review, the AAO does not find these letters persuasive in
establishing that the beneficiary will be employed primarily in an "executive" capacity in the United States.
As explained above, the record does not establish who, exactly, will perform the non-qualifying tasks inherent
to the beneficiary's many proposed "executive" duties. In the absence of a subordinate staff capable of
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary will primarily be a first-line manager of non-professional employees and/or will be engaged in
performing non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties
will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function
manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
WAC 06 099 50031
Page 11
relieving the beneficiary of the need to perform non-qualifying tasks, it must be concluded that the
beneficiary will perform these tasks even if the beneficiary otherwise has "executive level responsibility[ies]."
Furthermore, while the beneficiary's job description may vaguely outline the duties of an executive level
employee, a job description which reiterates the regulations and provides few details regarding what the
beneficiary will do on a day-to-day basis is not probative of the beneficiary actually performing qualifying
duties. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Therefore, the petitioner has
not established that the beneficiary will be employed primarily in an executive capacity.
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, it is noted that the instant petition was filed to extend a previously
approved petition. The previously approved petition was approved from May 3,2004 until May 3,2005. The
instant extension petition was filed on February 7, 2006. In that petition, the petitioner clearly indicates that
its basis for the classification sought is the "continuation of previously approved employment without change
with the same employer." The petition also seeks to "extend the stay of [the beneficiary] since [he] now
hold[s] this status." Title 8 C.F.R. § 2l4.2(1)(14)(i) clearly states that an extension petition may only be filed
if the validity of the original petition has not expired. In this case, since the validity of the previous petition
expired on May 3, 2005, the instant extension petition filed on February 7, 2006 must be denied as untimely.
Therefore, the AAO will dismiss the appeal for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity.
The regulation at 8 C.F.R. § 2l4.2(1)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(I)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(i)(1)(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 defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity."
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
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Page 12
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 th~ 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 ownership is a critical element of this visa classification,
the director may reasonably inquire beyond the issuance of paper stock certificates into the means by which
stock ownership was acquired.
In this matter, the petitioner, a corporation, asserts that it is 51 % owned by the beneficiary's foreign employer and
49% owned by the petitioner's president, In support of this assertion, the petitioner submitted a
stock certificate, corporate minutes, a tax return, an organizational documents. However, the petitioner's 2004
IRS Form 1120 fails to attribute any value to its capital stock. Also, the lease submitted by the petitioner for its
California business premises indicates that the lessee is '
On February 20, 2006, the director requested additional evidence. The director requested evidence that the
foreign entity purchased its shares in the United States entity.
In response, counsel explained in the letter dated May 8, 2006 that "[t]he shares of the U.S. company were
purchased with the inventory of merchandise, which was shipped, on several different dates, by [the foreign
employer] and was sold by [the petitioner]. The monies from the sales transactions were deposited into the bank
account of [the petitioner]." Counsel further explains that these deposits totaled $22,285.00. However, the bank
documents indicate that most of these funds originated with the petitioner's president and 49% stockholder,
. Moreover, the record is devoid of any evidence establishing what "inventory" or "merchandise"
was transferred by the foreign entity or when this claimed transfer occurred. Finally, while counsel asserts that
made payments to the petitioner as repayment of a debt he owed to the foreign entity, counsel
provides no evidence establishing the size or nature of this alleged debt. Without documentary evidence to
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported
assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988);
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA
1980).
Upon review, the AAO concludes that the petitioner has not established that it has a qualifying relationship with
the foreign entity. The petitioner has failed to credibly establish that the foreign entity has provided consideration
in exchange for the issuance of 51% of the petitioner's stock. 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 (Comm. 1998) (citi~asure Craft of California, 14 I&N Dec. 190). To
the contrary, the record only indicates that _ the claimed 49% stockholder and president of the
petitioner, provided funds to the petitioner. Furthermore, given the lease submitted by the petitioner, the record
indicates tha is actually doing business as the petitioner.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
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Page 13
and the petition may not be approved for this additional reason.
The initial approval of an L-IA new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of
proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.