dismissed L-1A Case: Construction

PUBLiCCOpy
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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
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File: EAC 07 01052448 Office: VERMONT SERVICE CENTER Date: Gel 0 31001
IN RE: 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.
c,:::/---~~--./"
Robe~~~n, Chief
Administrative Appeals Office
www.uscis.gov
EAC 07 010 52448
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 visa petition seeking to extend the employment of its general manager
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 corporation organized under the laws
of the State of California and is allegedly in the business of construction and renovation of residential and
commercial buildings. The beneficiary was granted a one-year period of stay to open a new office in the
United States as well as two two-year extensions of stay, and the petitioner now seeks to once again extend
the beneficiary's stay.
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, counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an executive.
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 (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.
EAC 07 010 52448
Page 3
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
(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 primarily perform managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act, although counsel on appeal appears to limit the beneficiary to an executive classification. Due to the
lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed in
either an executive or a managerial capacity and will consider both classifications.
The petitioner described the beneficiary's job duties in a letter dated October 12, 2006 as follows:
EAC 07 OlD 52448
Page 4
1. Performing supervisory tasks of construction projects;
2. Direct financial activities of the organization;
3. Responsible for the day[-]to[-]day management of the company which includes tasks
of hiring-firing an employee(s);
4. Directing workers with their respective construction tasks and responsible for sub
contractor [sic] needs such as framers, painters, carpenters, etc.;
5. Interpreting plans, estimate costs, planning construction methods and procedures,
coordinating the supply of labor and materials, studying building contract documents
and negotiating with building owners and subcontractors, controlling preparation of
cost estimates and payment of sub-contractors;
6. Providing general contractors and sub contractors [sic] specific directions about
tasks, quantity, quality, schedules through contracts and contract administration;
7. Ensuring that subcontractors meet safety and regulatory standards. Requiring that
specific performances standards and time sensitive contracts be in compliance;
8. Providing work directions, resolving problems, preparing schedules, and setting
deadlines for timely completion;
9. Assessing performance on a regular basis by on-site inspections and review of plans
and records, then immediately taking whatever actions are necessary to complete
projects successfully;
l O. Assuring that appropriate records and reports are prepared in a timely and accurate
manner and those proper files are maintained and secured. In addition, he consults
architects, engineers and other technical workers to make sure that designs are in
conformity with the building specification;
11. Maintaining and renewing licenses and legal documents required by the government
to run the business and to see that all taxes are filed in a timely manner;
12. Solely responsible for ordering, procuring the raw material and the tools required.
[The beneficiary] ensures that projects are performed with efficiency and are fulfilled
according to the satisfaction of clients; and
13. [The beneficiary] regularly meets with various development units who are looking
for a construction company to build up their projects. In case there are any
variation(s) required after the work has already started, [the beneficiary] makes a re­
estimate of work, time and cost required.
The nature of this work requires a substantial amount of experience in single-family new
homes, apartment and town homes construction, and building projects such as remodeling,
infrastructure installation and site development including scattered site new home
construction. Compliance with Building Code is another task performed by [the beneficiary].
In addition to the above mentioned skills, [the beneficiary] has extensive knowledge of
various construction projects, familiarity with design!build construction practices, extensive
experience reading and interpreting, engineering plans, diagrams, specifications, shop
drawings, familiarity with mechanical, electrical, building codes and ordinances. He is the
one who approves the release of payment, takes care of quality control and coordinates
inspections with appropriate City/Council officials. Furthermore, he issues necessary
notices/instructions to ensure that health & safety standards are adhered.
EAC 07 010 52448
Page 5
The petitioner also submitted a list identifying four full-time employees, including the beneficiary, and four
part-time employees. In addition, the petitioner submitted an organizational chart showing the beneficiary
reporting to the president/vice president and directly supervising a "chief financial officer," an "office
manager," and an "operations manager." The "operations manager" is, in turn, portrayed as supervising a
supervisor who, in turn, is portrayed as supervising three construction employees. While the petitioner
submitted 2005 Forms 1099 for various independent contractors, the petitioner did not submit specific
information regarding its engagement of independent contractors in 2006.
On November 24, 2006, the director requested additional evidence. The director requested, inter alia, a more
detailed description of the beneficiary's duties; a list of all employees identifying each employee by name and
title including complete position descriptions; a breakdown of the number of hours devoted to each of the
employees' job duties on a weekly basis; payroll records; and wage reports.
In response, counsel to the petitioner submitted a letter dated January 30, 2007. The letter contains a job
description for the beneficiary that is materially identical to the job description initially submitted in support
of the petition. While counsel asserts that the beneficiary will manager "a subordinate staff of professional
personnel who have a Master's in Business Administration and Bachelor's degrees," neither counsel nor the
petitioner specifically describes the duties or skills associated with the subordinate positions. Finally, while
counsel asserts that the beneficiary supervises other construction workers on an as-needed basis, counsel did
not submit any evidence specifically describing this purported duty.
On March 1, 2007, 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, the petitioner asserts that the beneficiary's duties are primarily those of an executive.'
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
As a threshold issue, the AAO notes that counsel to the petitioner attempted to supplement the beneficiary's
job description in the appellate brief by including a breakdown of the beneficiary's duties. Counsel also
attempted to describe the duties of the beneficiary's subordinates. However, the director specifically
requested these job descriptions in the Request for Evidence, and the petitioner was given a reasonable
'Counsel cited the Foreign Affairs Manual (FAM) in his brief as authority. It must be noted that the FAM is
not binding upon CIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N 125
(BIA 1979). The FAM provides guidance to employees of the Department of State in carrying out their
official duties, such as the adjudication of visa applications abroad. The FAM is not relevant to this
proceeding.
EAC 07 010 52448
Page 6
opportunity to provide them for the record before the visa petition was adjudicated. The petitioner failed to
submit this requested evidence and now submits it on appeal. The AAO will not consider this evidence for
any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533
(BIA 1988). The appeal will be adjudicated based on the record of proceeding before the director.
Moreover, as counsel failed to corroborate his assertions in the brief, these assertions would have no
evidentiary value even if considered on appeal. The unsupported assertions of counsel do not constitute
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1
(BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
In this matter, the petitioner's description of the beneficiary's job duties has failed to establish that the
beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has
submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary
will do on a day-to-day basis. For example, the petitioner states that the beneficiary will "[d]irect financial
activities of the organization" and be "[r]esponsible for the day[-]to[-]day management of the company which
includes tasks of hiring-firing an employee(s)." However, the petitioner does not explain what, exactly, the
beneficiary will do in performing these duties. The fact that the petitioner has given the beneficiary a
managerial or executive title and has prepared a vague job description which includes inflated job duties does
not establish that the beneficiary will actually perform managerial or executive 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).
Likewise, most of the duties ascribed to the beneficiary appear to be non-qualifying administrative or
operational tasks which will not rise to the level of being managerial or executive in nature. In support of the
petition, the petitioner provided a list of thirteen of the beneficiary's duties in the letter dated October 12,
2006. The petitioner also stated that the beneficiary is responsible for building code compliance and quality
control, approving the release of payments, coordinating inspections by officials, and issuing notices and
instructions addressing health and safety standards. However, based on the record as a whole, none of the
listed duties rises to the level of being managerial or executive in nature. For example, duties such as
preparing schedules, renewing licenses, ordering materials and the tools, and preparing estimates constitute
non-qualifying administrative or operational tasks. Furthermore, as the petitioner has failed to establish that
the subordinate workers are supervisory, managerial, or professional employees (see infra), the supervisory
functions ascribed to the beneficiary would also be non-qualifying, first-line supervisory 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 "primarily" be employed as a manager or an 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 of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
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.
EAC 07 010 52448
Page 7
As alleged in the organizational chart, job description, and wage reports, the beneficiary will directly
supervise a "chief financial officer," an "office manager," and an "operations manager." The "operations
manager," in tum, allegedly supervises a "supervisor" who, in tum, supervises three construction employees.
However, as the petitioner has not specifically described the duties of the subordinate employees, and has not
provided a breakdown of their duties on a weekly basis, the petitioner has not established that these workers
are truly supervisory or managerial employees. 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). In fact, the record is devoid
of any job descriptions for the subordinate staff members. Inflated job titles and artificial tiers of subordinate
employees are not probative and will not establish that an organization is sufficiently complex to support a
managerial position. 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. 101(a)(44)(A)(iv) of the Act; see also Matter
of Church Scientology International, 19 I&N Dec. at 604.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. 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, 8 U.S.c. § 1l01(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, 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 subordinate employees. The possession of a bachelor's, or even a master'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 the instant case, the petitioner has not, in fact, established that a
bachelor's degree is actually necessary to perform the duties of any of the beneficiary's subordinate positions.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 2
capacity,
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
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
EAC 07 010 52448
Page 8
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 be primarily employed as a first-line
supervisor and will perform the tasks necessary to produce a product or to provide a service. Also, as the
beneficiary is described as reporting to the president/vice president, it appears that any realistic authority to
direct the enterprise is vested in this individual and not in the beneficiary. Therefore, the petitioner has not
established that the beneficiary will be employed primarily in an executive capacity.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will primarily perform
managerial or executive duties, and the petition may not be approved for that reason.'
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 supervisor of non-professional employees and/or will perform 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. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
3In addition to those issues addressed above, counsel to the petitioner also argues on appeal that the director
failed to follow a 2004 internal Citizenship and Immigration Services (CIS) memorandum. Memo. From
, to Service Center Directors, The Significance of a Prior
CIS Approval ofa Nonimmigrant Petition in the Context ofa Subsequent Determination Regarding Eligibility
for Extension of Petition Validity (April 23, 2004). This memorandum provided guidance on the process by
which an adjudicator, during the adjudication of a subsequent request for petition extension, may question
another adjudicator's prior approval of a nonimmigrant petition where there has been no material change in
the underlying facts. Specifically, this Memorandum states that adjudicators should give deference to prior
approvals involving the same underlying facts except where: (1) it is determined that there was a material
error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place;
or (3) there is new material information that adversely impacts the petitioner's or beneficiary's eligibility. Id.
EAC 07 010 52448
Page 9
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed
abroad for at least one continuous year in a position that was managerial, executive, or involved specialized
knowledge. 8 C.F.R. §§ 214.2(1)(3)(iii) and (iv).
The petitioner described the beneficiary's duties abroad in a letter dated October 12,2006 as follows:
The memorandum also states that the adjudicator should clearly articulate the material error, changed
circumstances, or new material information in his or her decision. Id.
This memorandum does not apply to this matter in that the petitioner failed to provide much of the
documentary evidence requested by the director. Before the petitioner could argue that the director erred in
not deferring to an interpretation of evidence provided in support of a prior approved petition, it would need
to first provide the evidence appropriately requested by the director in this matter. See 8 C.F.R. §
214.2(l)(14)(i). It must be emphasized that that each petition filing is a separate proceeding with a separate
record. See 8 C.F.R. § 103.8(d). Furthermore, the memorandum limits its authority on Page 4:
This memorandum is intended solely for guiding USCIS personnel in performance of their
professional duties. It is not intended to be, and may not be relied upon, to create any
right or benefit, substantive or procedural, enforceable at law by any individual or other
party in removal proceedings, in litigation with the United States, or in any other form or
matter.
Courts have consistently supported this position. Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir.
2000) (holding that CIS memoranda merely articulate internal guidelines for INS personnel; they do not
establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also Noel v.
Chapman, 508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to INS district directors regarding
voluntary extended departure determinations to be "general statements of policy"); Prokopenko v. Ashcroft,
372 F.3d 941, 944 (8th Cir. 2004) (describing an INS Operating Policies and Procedures Memorandum
(OPPM) as an "internal agency memorandum," "doubtful" of conferring substantive legal benefits upon
aliens or binding the INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS
Operations Instruction (01) as an "internal directive not having the force and effect of law"); Ponce-Gonzelez
v. INS, 775 F.2d 1342, 1346-47 (5th Cir. 1985) (finding that OIs are "only internal guidelines" for INS
personnel, and that an apparent INS violation of an 01 requiring investigation of an alien's eligibility for
statutory relief from deportation was at worst "inaction not misconduct"). Therefore, the memorandum does
not create any substantive rights in the petitioner, and a director's failure to follow the guidance in the
Memorandum would not be grounds for a withdrawal of the decision.
Regardless, if CIS had based its approval of the earlier L-1A petitions on the same job description for the
beneficiary and the same description of the petitioner's subordinate staff, such approvals would have
constituted "material error" as described in this memorandum, and the director's denial of the instant petition
would have been proper under the guidelines articulated in this CIS memorandum.
EAC 07 010 52448
Page 10
[The beneficiary's] main activities for the Canadian company included but were not limited to
coordinate the activities between workers and directing work amongst the workers. He also
made sure that the construction meets the specific requirements of our clients. In addition, he
was responsible for each phase of the [c]onstruction including the proper supervision of the
work of the sub contractors [sic]. Also he would procure raw materials and the
tools/machinery required for the various projects. While in Canada, he also supervised all the
electrical work
The petitioner also submitted an organizational chart for the foreign employer. The chart indicates that the
foreign employer employs a president who supervises an office manager and a project manager. It is unclear
how the beneficiary's former position abroad fits into this organizational chart.
In response to the director's Request for Evidence, counsel further described the beneficiary's duties abroad in
a letter dated January 30, 2007 as follows:
While working for [the foreign employer] as a Secretary and licensed builder, [the
beneficiary] was responsible for managing and supervising all the field operations of the
company in Canada, that included planning, directing, and coordinating a wide variety of
construction projects. He would oversee and coordinate the activities of the frontline workers
and direct and distribute work amongst them. He was responsible for ensuring that the work
performed met all the client specifications and was also in compliance with the city building
and construction codes. He remained in charge of all phases of construction and also
coordinated and supervised the work of the various sub-contractors. Including scheduling
and coordinating all design and construction processes, including the selection, hiring, and
oversight of specialty contractors. In addition, [the beneficiary] supervised and oversaw all
the electrical work undertaken by [the foreign employer].
Counsel also indicated that the beneficiary supervised between eight and ten workers including a construction
supervisor, a foreman, and construction and electrical workers. Counsel described the construction supervisor
as being "responsible for overseeing that the work was implemented according to the plan and specifications
and would schedule and coordinate all design and construction processes." Counsel described the foreman as
being "in charge of the construction crew, and ensured that the workers had work to do and the tools and
materials required to perform the work" Counsel also asserts that the beneficiary spent between 55% and
65% of his time on "executive duties." The beneficiary devoted the rest of his time to non-qualifying duties
including "hands on construction or electrical work"
Upon review, the petitioner has failed to establish that the beneficiary was employed abroad in a primarily
managerial or executive capacity.
As a threshold issue, counsel's uncorroborated description of the duties of the beneficiary and the other
workers abroad does not constitute evidence and will not satisfy the petitioner's burden of proof. Matter of
Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N
Dec. at 506. Therefore, the petitioner has failed to fully respond to the director's request for further evidence
addressing the beneficiary's duties abroad. Failure to submit requested evidence that precludes a material line
EAC 07 010 52448
Page 11
of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190). For this reason alone, the petitioner has failed to establish that the beneficiary
was employed abroad in a primarily managerial or executive position, and the petition may not be approved.
Regardless, the petitioner has not described the beneficiary as performing "primarily" qualifying duties
abroad. As indicated above, the beneficiary is described as overseeing and coordinating "the activities of the
frontline workers and direct[ing] and distribut[ing] work amongst them" and as supervising "the work of the
various sub-contractors." However, such duties are non-qualifying first-line supervisory tasks. 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, duties such as procuring raw
materials, tools, and machinery, and "hands on construction or electrical work" are non-qualifying
administrative or operational tasks. While counsel stated without elaboration that "[t]he beneficiary spent
55% to 65% of his time on executive duties," this self-serving statement is without probative value, especially
in view of the job description which fails to clearly and specifically define any executive or managerial duties.
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 Soffici, 22 I&N Dec. at 165 (citing Matter of
Treasure Craft of California, 14 I&N Dec. 190). 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, aff'd, 905
F.2d 41. In this matter, it appears that the beneficiary was more likely than not primarily performing non­
qualifying electrical and construction tasks rather than performing qualifying managerial or executive duties.
As indicated above, 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; see also Matter of Church Scientology International, 19 I&N Dec.
at 604.
Furthermore, the petitioner also failed to establish that the beneficiary supervised and controlled the work of
other supervisory, managerial, or professional employees. As alleged in the record, the beneficiary
supervised a "construction supervisor" and a "foreman." However, the petitioner failed to establish that these
workers were truly supervisory or managerial employees. First, the vague job descriptions provided in
counsel's letter do not establish that these workers truly had supervisory authority over the construction
workers. An employee will not be considered to be a supervisor simply because of a job title or because he or
she supervises daily work activities and assignments. Rather, the employee must be shown to ossess some
significant degree of control or authority over the employment of subordinates .
.D. Tenn. 2003)
Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007)). Second, it appears unlikely that these workers were
even employees of the foreign employer. As indicated above, the foreign employer's organizational chart
does not include a "construction supervisor" or a "foreman." It appears that these individuals were, at most,
independent contractors. 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
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Act; 8 C.F.R. § 214.2(l)(1)(ii)(B)(2). The Act is quite clear that only the management of employees may be
considered a qualifying managerial duty for purposes of this visa classification.
Finally, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. As
explained above, it appears that the beneficiary was primarily employed as a first-line supervisor and was
performing tasks necessary to produce a product or to provide a service. Also, as the beneficiary is described
as reporting to the president, it appears that any realistic authority to direct the enterprise was vested in this
individual and not in the beneficiary. Therefore, the petitioner has not established that the beneficiary was
employed primarily in an executive capacity.
Accordingly, the petitioner failed to establish that the beneficiary had been employed abroad for at least one
continuous year in a position that was managerial, executive, or involved specialized knowledge, and the
petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign employer.
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations." Title 8 C.F.R. § 214.2(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 definitions of a
parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section." "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."
In this matter, the petitioner asserts in the Form 1-129 that the foreign employer "owns 100% of [the petitioner]."
Counsel reiterates this claim in the letter dated October 13, 2006. However, the record contains several
inconsistencies which undermine this claim. For example, the petitioner submitted organizational minutes which
indicate that the etitioner initially issued 30,000 shares of stock in 2001 to three individuals: (1) 20,000 shares to
to the beneficiary, and (3) 5,000 shares to While this description
is consistent with the ownership structure described in Schedule E of the petitioner's 2004 Form 1120, it is
fundamentally inconsistent with the assertion in the current Form 1-129. Furthermore, the petitioner's 2005 Form
1120, Schedule E, contains an entirely different, and inconsistent, description of the petitioner's ownership and
control. The 2005 Form 1120 indicates that the beneficiary and ow each own 33% of the
petitioner, thus altering the ownership and control of the petitioner from that described in the 2004 Form 1120.
The petitioner offers no explanation for these fundamental inconsistencies in the record. 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).
Accordingly, the petitioner has not established that it and the foreign entity are qualifying organizations. For
this additional reason, the petition may not be approved.
The previous approvals of L-1A petitions do not preclude CIS from denying an extension based on a
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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), afJ'd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises,
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
Finally, based on the reasons for the denial of the instant petition, a review of the prior L-1 nonimmigrant
petitions (WAC 01 28851499, WAC 03011 50681, and WAC 04 260 51648), and the immigrant petition
(WAC 06 041 50102), all approved on behalf of the beneficiary, is warranted to determine if they were also
approved in error. Therefore, the director shall review these prior petitions approved on behalf of the
beneficiary for possible revocation in accordance with 8 C.F.R. § 214.2(1)(9) and 8 C.F.R. § 205.2.
ORDER:
FURTHER ORDERED:
The appeal is dismissed.
The director shall review the prior L-1 nonimmigrant petrtions, and the
immigration petition, approved on behalf of the beneficiary for possible
revocation pursuant to 8 C.F.R. § 214.2(1)(9) and 8 C.F.R. § 205.2.