dismissed L-1A Case: Commercial Maintenance

kI.erltifyingdatadeletiedto
preventclearlyunwarranted
mypiOllofpersonalprivacy
([;S. DepllrtlDent!lflIomeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 118 50623
i
Office: TEXAS SERVICE CENTER Date: DEC 0 5 2006
IN RE:Petitioner:
Beneficiary:
\
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.C. § llOl(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.
~ . ' ' . '\ ' " ..
~-.. , .
. . ~
Ro't5en-P:-Wiemann, Chief .
Administrative Appeals Office .
www.uscis;gov
SRC 05 118 50623
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president and
managing director 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)(15)(L) . The petitioner is a limited liability
company organized . under the laws of the State of Florida and is allegedly a commercial maintenance
contracting company .I The petitioner claims a qualifying relationship with A . Fisher Building & Glazing
located in the United Kingdom . The beneficiary was init ially 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 for three years .
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity . .
The petitioner 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 director erred in
denying the petition because the record establishes that the beneficiary is employed in a primarily managerial
or executive capacity.
To establish eligibility (or 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 knowledgecapacity , 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
. lIt should be noted that, according to the Florida Department of State, Division of Corporations , the petitioner
has been administratively dissolved due to its failure to satisfy the state's annual reporting requirements .
. Therefore , regardless ofwhether the' petitioner's annual reporting issues in Florida can be easily remedied or
not, this raises the cr itical issue .of the company 's cont inued existence -as a legal entity i n the United States.
See Fla. Stat. 607 .1421 (2006).
/
SRC 05 118 50623
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abroad with a qualifying organ ization within the three years preceding the filing of
the petition. .
(iv) . Evide~ce 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 U~ited States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8C.F.R. §2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be exten,dedby filinga 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)(1)( ii)(G) of this section;
(B) . Evidence that the United States entity has been doing business as defined in
.paragraph (l)(l )(ii)(H) of this section for the previous year;
(C) ·Astatement 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)(4·4)(A), defines the term "managerial capacity" asan
assignment within an organization in which the employee primarily:
(i) manages the organization , or a department, subdi vision, 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 superv ised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
SRC 05 118 50623
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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 b~
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} ofthe 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 d iscretionary 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
duties under section 101(a)(44)(A) of the Act or primarily executive duties under section 101(a)(44)(B) of the
Act. . 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 described the beneficiary's job duties in a letter dated February 24, 2004 appended to the Form
1-129:
[The beneficiary] has been and WIll continue to be for our US venture, ' ultimately ,
responsible for the company's goals and policies and for the h iring and firing of all staff.
He has also been and will continue 'to be responsible for the entire day to day ; systematic ,
operations of the company. [The beneficiary] will continue [to] retain overall
accountability and delegate additional responsibil ities with sub-contractors including the
authority to oversee personnel who direct the activities of various facets of our company
such as construction ; restoration , general mainten~ce, ' accounting , advertising ,
procurement , and implement the organization's policie s on a day-to-day bas is. .
. the petitioner also indicate ~ in the letter that it has three full-time ' employees. However , the 2004 wage
reports, forms W-2, and forms 1099-MISC submitted for the petitioner reveal that the ' petitioner only
SRC 05 118 50623
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~ed two people in 2004 , the beneficiary and _ Moreover , the documents reveal that Mr.
~as paid employee compensation of $546.00 in 2004 plus $6 ,835.00 in non-employee compensation.
No information was provided for the other employee(s), and no job description was provided fon
On March 28, 2005 , the director requested additional evidence. Specifically ,-the director requested evidence
regarding the petitioner's employees including, but not limited to , their job duties.
' . .. . . .
In response, the petitioner submitted an organization~l chart listing ~s a "manager." The chart
also named two subcontractors and a sales representative, although no corroborating evidence establishing
their employment by the petitioner was submitted.
On April 11 2005 , the director denied the petition. ' 'The director determined that the petitioner did not
establish that the beneficiary .will be employed in the United States in a primarily managerial or executive
capacity.
On appeal , the petitioner asserts that the director erred in denying the petition . Specifically, counsel to the
petitioner asserts in the Form. I-290B that the petitioner employs "three full time people who are first line
supervisors, who thus supervise the other workers and sub-contractors who perform the work in the numerous
aspects of the petitioner's business ," and that these "supervisors" report to the beneficiary.
Upon review , the petitioner's assertions are not persuasive. Title 8 C.F.R. § 2l4 .2(1)(3)(v)(C) allows the
intended United Stites operation one year within the date of approval of the petition to support an executive. . . ,
or managerial position. There is no provision that allows for an extension Of this one-year period. If the
business is not - sufficiently operational after one year, the petitioner is ineligible by regulation for an
.extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantlymanagerial or executive position as defined by law.
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. § ~14.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity . 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 '
petition, the petitioner has provided a vague and nonspecific description of the beneficiary 's duties that fails
to demonstrate what the beneficiary does on a day-to-day basis. For example , the petitioner states that the
beneficiary is responsible for goals and policies and for the day-to-day operation of the business. The
petitioner did not , however, specifically explain -what the beneficiary does on a day-to-day basis. Moreover ,
SRC 05 118 50623
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because of the vagueness of the job descriptions provided for the beneficiary and the subordinate employee(s)
and the lack of employees available to relieve the beneficiary of performing non-qualifying administrative or
operational tasks, it must be concluded that his operation of the company includes both managerial and non­
qualifying duties. Importantly , because the petitioner fails to quantify the time the beneficiary spends on
these administrative or operational tasks, the petitioner has not establ ished that the beneficiary is acting
primarily as a manager. An employee who "primarily" performs the tasks necessary to produce a product or
to provide services is not considered to be "primarily " employed ina managerial or executive capacity. See
sections 101(a)(44)(A) and (B) ot-the Act (requiring that one "primarily" perform the enumerated managerial
'or executive duties); see al so Matter of Church Scientology International, 19 I&NDec. 593, 604 (Comm.
1988). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter .of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972). Specifics are clearly an important indication 'of whether a beneficiary 's duties are primarily
executive or managerial in nature ; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. co..Ltd,' v. Sava, 724 F. Supp. 1103 (E.D.N .Y. 1989), aff'd, 905 F.2d 41 (2d.
Cir. 1990). .
The , petitioner also failed to prove that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that he will manage an essential function within the
. or.ganization. The petitione~ded no information about its subordinate employees other than
evidence that one employee, _ was paid $546.00 in 2004, and that the petitioner considers Mr.
_o'be a "rrianager." .The .petitioner provided no corroborating evidence establishing that the petitioner .
, actually employed and compensated any other employees since its establishment .' Even if it had, the
. petitioner failed to establish that these employees or independent contractors were supervisory , professional,
or managerial employees since no job descriptions were provided. While counsel asserts on appeal that the
subordinate employees supervised other unnamed subcontractors, no corroborating evidence was submitted.
The unsupported statements of counsel on appeal or in a motion are notevidence and thus 'are not entitled to
any evidentiary weight. See INS v. Phinpathya , 464 U.S. 183, 188-89 n .6 (1984); Matter ofRamirez-Sanchez,
17 I&N Dec. 503 (BIA 1980) . ...
Given the above, 'the beneficiary would appear to be afirst-line supervisor, the provider of actual services , or .
'a combination of both. Amanagerial or executive employee must have authority over day-to-dayoperations. "
beyond the level normally vested in a first-line supervisor , unless the supervised employees are professionals .
.101(a)(44)(A)(iv) of the Act ; see also Matt er of Church Scientology .Int ernational, 19 I&N Dec. at 604.
There ISno evidence in the record establishing that the subordinate employeets) relieve the beneficiary of
performing non-qualifying duties. Finally , since the record fails to reveal the educational or skill levels of the
2While the petitioner provided evidence th~t _ was compensated $6,835.00 as an independent
contractor in 2004 ; and also asserts that other subcontractors were employed by the petitioner, this evidence
would not be sufficient .to: establish that the beneficiary supervised or controlled the work of other
supervisory , professional , or managerial employees even if they were performing qualifying duties. ,The
statute and the regulations are very specific that the beneficiary must supervise other employees. Independent
contractors are not employees. See 26 C.F.R . § 31.3121(d) -1(c)(2).
SRC 05 118 50623
Page 7
subordinate employees, it cannot be determined if they rise to the level of professional employees.'
Therefore, the record does not prove that the beneficiary will be acting in a managerial capacity."
Similarly, the petitioner has failed to prove that the be~eficiary 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
3Inevaluating 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. § 11oI(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. .Maiter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
4While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless does not support this position. The term "function manager" applies
generally when a beneficiary does not supervise or control, the work of a subordinate staff but instead is
primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 c.P.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
I
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions and
what proportion would be non-managerial. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, as well as a clear explanation of the duties, the AAO cannot determine
what proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. ofJustice, 48 P. Supp. 2d 22,
24 (D.D.C. 1999).
SRC 05 118 50623
Page 8
stockholders of the organization ." Id. As indicated above, the petitioner has failed to prove that the
beneficiary, who is allegedly managing a few employees who are apparently engagedin providing services to
customers, will be acting 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 acompany's small personnel size, the absence of employees who would -perform the non­
manageriai or non-executive operations of the compan y; or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7;15 (D.D.C. 2001) .
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C.F.R. § 214.2(1)(3) .
Beyond the decision of the director , a related issue is whether the petitioner has established that it has a
qualifying relationship with the foreign entity .
The regulation 'at 8 C.F.R. § 214.2(1)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanie.d by:
(A) Evidence that the United States and the foreign entity are still 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 "a legal entity
owned and controlled by the same group of individuals, each owning 'and controlling approximately the same
share or proportion of each 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
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc. , 19 I&N Dec. 362 (BIA 1986) ; Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). In the context of this visa petition, ownership refers to the dir~ct 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
ofChurch Scientology International , 19 I&N Dec. at 595.
The documents appended to the ' initial Form 1-129 petition reveal that the foreign entity is a ' "sole
proprietorship" owned entirely by the beneficiary. The petitioner also provided an unsigned copy of a
Limited Liability. Company Operating Agreement. indicating that the beneficiary and his spouse are each
members of the petitioner .
Upon review , the petitioner has not established that it has a qualifying relationship with the foreign employer
because the petitioner has provided insufficient evidence to establish the ownership and control of the United
States operation . In this case, the petitioner has provided an unsigned operating agreement indicating that the
SRC05 11850623
Page 9
beneficiary and his spouse are each members of the limited liability company . Florida limited liability
companies are regulated by the Florida Limited Liability Company Act. Fla. Stat.§§ 608.401 to 608.705.
This law provides guidance on how a Florida limited liability company can evidence ownership interests by
members. .. Section 608.4101 requires Florida limited liability companies to maintain records including, but .
not limited to , a list .identifying each member by name , and last known address. Fla . .Stat. § 608.4101 .
Moreover, section 608.432(3) specifically permits limited liability companies to evidence a member's interest
in the company by issuing a certificate of membership interest. Fla. Stat. § 608.432(3). In this case , the
petitioner has failed to provide any of the documentation that it could, or must, maintain which would
establish that the beneficiary owns or controls the limited liability company.
In addition, the unsigned operating agreement is insufficient to establish that the beneficiary owns or controls
the petitioner. In order for the operating agreement to have any evidentiary value in establishing ownership
and control, the petitioner would need to provide additional evidence establishing that the members have
agreed to the terms of the operating agreement. In this case, there is no evidence that the members have ever
agreed to the terms of the operating agreement.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign
employer, and the petition may not be approved for this additional reason.
The initial approval of an L-1A 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 ofthe Act, 8 V.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. "UnitedStates, 229 F. Supp. 2d 1025, 1043 (B.D. Cal. 2001), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
. The petition will be denied for the above stated reasons , with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
'succeed on a challenge only ifit 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 .