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PUBLICcopy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: WAC 06 037 52033 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 5:2JIl1
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(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.
' ------'"'l, .'-~/ ..... ,.. ---;J '~
Rob~iemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 037 52033
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks to temporarily employ the beneficiary as its president to open a new office in the United
States as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 110I(a)(l5)(L). The petitioner, a corporation
organized in the State of California, claims to be engaged in computer parts sales and consultation. It also
claims to be the subsidiary of Caltechnology International Ltd., located in Taipei, Taiwan. The director
denied the petition concluding that the petitioner did not establish that the beneficiary would be employed in
the United States in a primarily managerial or executive capacity.
Counsel for the petitioner subsequently filed an appeal. On appeal, counsel for the petitioner asserts that the
director erred by concluding that the beneficiary was not employed in a qualifying capacity. In support of this
contention, counsel submits a brief and additional 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 (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment abroad
with a qualifying organization within the three years preceding the filing of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies 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 primary issue in this matter is whether the beneficiary will be employed by the United States entity in a
primarily managerial or executive capacity.
WAC 06 037 52033
Page 3
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.
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.
A letter from the petitioner dated November 10, 2005 explained that the petitioner currently employed four
persons, including the beneficiary. The petitioner stated that due to the recent resignation of the petitioner's
marketing manager, the beneficiary was temporarily performing the duties of that position as well as those of
president. The following overview of the beneficiary's duties was submitted in a document entitled
"Beneficiary's Duties in the U.S.":
Job Title: President
WAC 06 03752033
Page 4
JOB DESCRIPTION:
The President is responsible for successful management of the company in the U.S. The major
objective is to generate new sales and servicing existing accounts in targeted global /
multinational electronic OEM and subcontractor accounts through skilled account
management. Key tasks would include developing, implementing, managing a focused sales
and marketing program and leading customer focused sales teams.
RESPONSIBILITIES
• Help all employees to understand, develop, affect and impact strategies to drive all
[petitioner] cabling solutions (data cable, networking cable and accessories) to
assigned target accounts.
- Persons to direct: all employees
• Work with company's administration and finance employees to establish common
administration process platform and sharing of best practices.
- Person to direct: administration/finance specialist (
• Work with company's sales and marketing specialist to develop an Account Plan and
effectively communicate and implement the account strategy through effective sales
management system.
- Person to direct: Marketing Manager (currently act [sic] by [Beneficiary])
- Person to direct: Sales Manager
*
*
*
* *
• Other external activities for effective business operation.
The petitioner also submitted an organizational chart demonstrating that as president, he oversaw the
administration/finance manager, the marketing manager (currently himself), and the sales manager. The sales
manager in tum oversaw one sales assistant.
On December 29,2005, the director requested additional evidence with regard to the beneficiary's managerial
and/or executive capacity. Specifically, the director requested a more detailed organizational chart which
displayed the organizational hierarchy of the petitioner. The director also requested information regarding the
educational backgrounds of the beneficiary's subordinates. Finally, definitive evidence of the beneficiary's
executive capacity was requested, including a list of the specific goals and policies the beneficiary had
established, the specific discretionary decisions he had made, and his day-to-day duties for the past six
months. Additionally, evidence demonstrating that he only received general supervision from the petitioner's
WAC 06 037 52033
Page 5
board of directors was requested. Finally, payroll records and copies of the petitioner's quarterly wage
reports were requested to verify the employment of the persons identified on the organizational chart.
In a response dated February 14, 2006, the petitioner addressed the director's requests. The petitioner
resubmitted the organizational chart previously submitted, with a notation that the marketing manager had
resigned and was temporarily being replaced by the beneficiary. The petitioner also addressed the director's
request for evidence of the beneficiary's executive capacity and stated that an "On-Job Certification" was
submitted in support of the beneficiary's executive capacity. It also resubmitted the description of duties
quoted above and provided the additional details set forth below:
Goals and Policies the beneficiary Established
The goal of the U.S. company is to strive to be the leading supplier of custom-made cable
assemblies and other relative products through its total quality and customer satisfaction
approaches. The company policy is to achieve Total Quality Performance in meeting the
requirements of its customers. Total Quality Performance means understanding who the
customer is, what the requirements are, and meeting those requirements without error, on time,
each time.
Discretionary Decisions the beneficiary has Exercised
a) Setup office management tools and sales service system to mcrease work
effectiveness.
b) Enabled financial resources at the beneficiary's discretion in the accomplishment of
important priorities and goals.
c) Decided ways that work in creating company sales revenue. The U.S. company has
increased sales amount during year 2005 by more than 4 times over year 2004, i.e.,
$1.1 million over $0.25 million, and are now becoming profitable company.
d) Judged means of conducting multinational logistic control among U.S., Japan and
Taiwan that has led to ultimate customer satisfaction.
On March 15, 2006, the director denied the petition. The director determined that the evidence in the record
did not establish that the beneficiary was employed in a primarily managerial or executive capacity while in
the United States. Specifically, the director concluded that since the beneficiary was actively performing the
duties of the marketing manager at the time of filing, he was clearly engaged in non-qualifying duties.
Additionally, the director noted there was no subordinate staff of managerial, supervisory, or professional
employees under the beneficiary's supervision. The director concluded that the petitioner did not have the
organizational complexity to support the beneficiary in a primarily managerial or executive capacity.
On appeal, counsel argues that the director "misunderstood the point described," and claims that the
description of duties provided clearly shows that the beneficiary was making policy decisions. Counsel
further alleged that the beneficiary was in fact overseeing a staff of professionals. Finally, counsel contends
that the description of duties provided adequately accentuated the executive nature of the beneficiary's duties
WAC 06 037 52033
Page 6
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon
review of the beneficiary's stated duties and the current structure of the petitioner's enterprise, the petitioner
has failed to establish that it will employ the beneficiary in a capacity that is primarily managerial or
executive.
While the beneficiary is the intended president of the company, there is insufficient evidence to show that he
is acting primarily in a managerial or executive capacity. 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(1)(3)(ii). In this case, the petitioner clearly states that the beneficiary has assumed the duties of
the marketing manager as a result of her resignation. The duties of the marketing manager were said to
include "marketing" and "promotion activities." In addition, in the description of the beneficiary's day-to-day
duties, the petitioner indicates that the beneficiary oversees the marketing manager (currently himself). As a
result of the claim that the beneficiary performs the duties of both the president and the marketing manager, it
is unclear which position requires the majority of the beneficiary's time. The actual duties themselves reveal
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989),
affd, 905 F.2d 41 (2d. Cir. 1990).
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be
managerial and/or executive functions, and what portion would be devoted to marketing tasks and thus be
deemed non-managerial. The petitioner lists the beneficiary's duties as including both managerial and
marketing and sales-related tasks, but fails to quantify the time the beneficiary spends on them. This failure
of documentation is important because the duties of the marketing manager do not fall directly under
traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. of
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
Since the beneficiary appears to be directly performing all the marketing tasks for the company, and since
many of these duties are non-qualifying in nature, it appears that he is not employed in a primarily managerial
or executive capacity. An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
Furthermore, the petitioner claims that the beneficiary oversees three employees (not including himself in the
role of marketing manager). Although the beneficiary is not required to supervise personnel, if it is claimed
that his duties involve supervising employees, the petitioner must establish that the subordinate employees are
supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8U.S.C. § 1101(a)(32), states that "[tjhe term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
WAC 06037 52033
Page 7
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, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In response to the request for evidence, the petitioner claimed that all of its employees
possessed college degrees. The petitioner did not, however, establish that a bachelor's degree is actually
necessary to perform the work of the positions subordinate to the beneficiary.
Furthermore, counsel on appeal essentially acknowledges that the beneficiary performs many non-qualifying
duties, arguing that the development and current status of the petitioning enterprise requires these services.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In this case, however, the petitioner has been in business
since 2003 and can no longer be considered a new office. As a result, a presumption exists that the u.s.
entity should be sufficiently operational and established, thus obviating the need for a manager or executive to
engage in non-qualifying tasks. Clearly this is not the case in the instant matter, as demonstrated by the
beneficiary's hands-on marketing duties and definitive obligation to fill in for absent subordinate employees
due to the small size of the petitioner and the lack of other employees to relieve the beneficiary from engaging
in such non-qualifying tasks. The AAO is therefore precluded from determining that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). In this matter, it is undisputed
that the beneficiary was performing non-qualifying duties as the time the petition was filed since he was
actively assuming the critical position of the marketing manager. As stated above, an employee who
primarily performs the tasks necessary to produce a product or to provide services is not considered to be
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. at
604. As the petitioner has failed to establish that the beneficiary will be relieved from having to primarily
perform non-qualifying duties, the petition may not be approved.
Beyond the decision of the director, the petitioner has failed to establish that a qualifying relationship exists
between the petitioner and the foreign employer. Although the petitioner claims to be a wholly-owned
subsidiary of the foreign entity, the petitioner has failed to submit sufficient evidence to support this claim.
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
WAC 06 037 52033
Page 8
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 ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates, the corporate stock
certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder
meetings must be examined to determine the total number of shares issued, the exact number issued to the
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit,
the management and direction of the subsidiary, and any other factor affecting actual control of the entity.
See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents,
Citizenship and Immigration Services is unable to determine the elements of ownership and control.
In this matter, the record contains the petitioner's 2004 Form 1120, U.S. Corporation Income Tax Return.
Line 5 of Schedule K, and Statement 5 in support thereof, claims that the petitioner is 100% owned by the
foreign entity. However, without corporate documentation such as that discussed above, this document alone
is insufficient to show that a qualifying relationship exists between the parties. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
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).
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. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.