dismissed L-1A Case: Construction And Real Estate

PUBUCCOPY
identifyingdatadeletedto
preventclearlyunwerraated
invasionof personalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE:
INRE:
SRC 06 031 51708
Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: FEB 21 z007'
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON 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.
Y /
hn 71 //i/ ~;"tt~ <~~A-------
~Obert P. Wiemann, Chief
. Administrative Appeals Office
www.uscis.gov
SRC 06 031 51708
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 appeal will be summarily
dismissed.
The petitioner, a Texas company, claims to be a wholly-owned subsidiary ofNikuzey Ad, Ltd., located in
Israel. The petitioner stated that the United States entity is engaged in the construction and real estate
development business. Accordingly, the United States entity petitioned Citizenship and Immigration
Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to
section 101(a)(l5)(L) of the Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The beneficiary was initially
granted a one-year period of stay to open a new office in the United States and the petitioner now seeks to
extend the beneficiary's stay in order to continue to fill the position of general manager/president.
On December 19, 2005, the acting director denied the petition concluding that the record contains
insufficient evidence to demonstrate: (1) that the beneficiary will be employed in a managerial or
executive capacity; and (2) that the United States entity is doing business as required by the regulations.
On January 17, 2006, the petitioner timely submitted Form 1-290B to AAO and appealed the decision of
the director. Counsel for the petitioner states on Form 1-1290B, Notice of Appeal, that the beneficiary is
employed in a managerial capacity because the beneficiary "is responsible for the entity in its entirety"
and has been responsible for "directing and overseeing the entity's operations, managing client
relationships, and overseeing the work of several employees including other employees in valid
managerial capacity." Counsel for the petitioner did not submit a brief or additional documentation in
support of the appeal.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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.
Regulations at 8 C.F.R. § 103.3(a)(l)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition.
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the
part of the director, are simply insufficient to overcome the well founded and logical conclusions the
director reached based on the evidence submitted by the petitioner. Without documentary evidence to
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,
534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N
Dec. 503, 506 (BIA 1980).
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Despite counsel's brief statement on appeal, based on the minimal documentation in the record, it cannot
be determined that the beneficiary will be employed in a managerial or executive capacity. 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states
that the beneficiary's duties include: "define partnership needs, establish partnerships and manage
ongoing operational relationships with key partners at a market/service level"; "work closely with all
areas of the company to define all aspects of the emerging/growing business"; and "direct business
development in the sale and post-sale relationship management." Reciting the beneficiary's vague job
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves
will 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).
The job description also includes several non-qualifying duties such as the beneficiary will "act as a
primary market expert in the company's marketing/growth processes"; "locate and secure additional
investments for the entity"; "direct the company's sales efforts, bid preparation, and negotiation with [the
U.S. entity's] clients;" perform "bidding on business;" and "take care of importing material from
overseas." As the U.S. company does not employ a marketing manager or a marketing staff, it appears
that the beneficiary will be primarily providing the services of the business rather then directing such
activities through subordinate employees. An employee who "primarily" performs the tasks necessary to
produce a product or provide a service is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform
the enumerated managerial or executive duties); see also Matter ofChurch Scientology International, 19 I
& N Dec. 593, 604 (Comm. 1988).
The petitioner indicated on the Form 1-129 that the company has eight employees and contractors. In
support of the petition, the petitioner submitted a list of employees at the U.S. company. The list
indicated the beneficiary as the general manager, one secretary, one salesman, one foreman, and four
"labor" employees. In response to the director's request for evidence, the petitioner submitted a second
list of employees and an organizational chart for the U.S. company that indicated several discrepancies
from the information previously submitted by the petitioner. First, the initial list of employees listed one
individual as a "labor" employee but the organizational chart indicated the same employee as a
"construction manager/foreman," and the individual originally listed as "foremen" is identified as a
"marketing, contract and negotiation" employee on the organizational chart. Second, three of the
SRC 06 031 51708
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positions listed on the initial employee list are later given managerial titles in the organizational chart
subsequently submitted. For example, the employee listed as "secretary" in the initial list of employees is
later listed as "office manager/secretary;" the "salesmen" is listed as sales manager; one "labor" employee
is listed as construction manager/foremen; and another "labor" employee is listed as "shift manager
construction - manual labor" on the organizational chart. The petitioner has not explained these
discrepancies between the initial employee list and the organizational chart submitted in response to the
director's request for evidence. Again, 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 of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's proof may, of
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in
support of the visa petition. Id.
Although counsel states on the Form 1-129 that the petitioner has several contractual employees, the
petitioner has neither presented evidence to document the existence of these employees nor identified the
nature and scope of the services these individuals provide. Additionally, the petitioner has not explained
how the services of the contracted employees obviate the need for the beneficiary to primarily conduct the
petitioner's business. Without documentary evidence to support its statements, the petitioner does not
meet its burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm, 1998).
A critical analysis of the nature of the petitioner's business undermines the petitioner's assertion that the
beneficiary is employed in a managerial or executive capacity. It appears that the individuals employed
by the U.S. company include the secretary, a salesman, a foreman, and labor employees. Thus, it appears
from the record that the beneficiary will be performing several, if not all, of the finance operations and
business development activities, and all of the various operational tasks inherent in operating a business
on a daily basis, such as purchasing inventory, paying bills, handling customer transactions, and
negotiating contracts. Based on the record of proceeding, the beneficiary's job duties are principally
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or
executive role. An employee who "primarily" performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated
managerial or executive duties); see also Matter ofChurch Scientology Intn 'I., 19 I&N Dec. at 604.
Based upon evidence submitted, it appears that the beneficiary has been and will be performing the
services of the U.S. entity rather than performing primarily managerial or executive duties as its president
and general manager. The petitioner has not demonstrated that the beneficiary will be functioning at a
senior level within an organizational hierarchy other than in position title. Accordingly, the petitioner has
failed to demonstrate that the beneficiary has been or will be employed primarily in a qualifying
managerial or executive capacity. For this reason, the appeal will be dismissed.
The second issue in this proceeding is whether the United States entity is doing business as defined in the
regulations at 8 C.F.R. § 214.2(l)(1)(ii)(H). In order to demonstrate that the U.S. entity has engaged in
the regular, systematic and continuous provisions of goods or services, the petitioner submitted several
invoices billed to the U.S. entity, financial statements for 2004 and 2005, copies of the U.S. company's
SRC 06 031 51708
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bank account, and the IRS Form 1120, U.S. Corporation Income Tax Return, for 2004 indicating a gross
receipt of sales of $24,000.
On review, the evidence submitted is insufficient to establish that the U.S. entity has been or is engaged in
the regular, systematic, and continuous provision of goods and/or services as a qualifying organization.
The petitioner did not submit evidence of the type of business the U.S. entity has been engaged in for the
past year. There are several bills issued to the U.S. company, however, the petitioner did not submit any
invoices issued by the U.S. company to clients for the services or goods provided by the U.S. company.
Although the U.S. company has purchased inventory, it is not clear what goods or services the U.S. entity
sells or provides. 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 ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States operation one year within
the date of approval of the petition to establish the new office. Furthermore, at the time the petitioner
seeks an extension of the new office petition, the regulations at 8 C.F.R. § 214.2(1)(14)(ii)(B) requires the
petitioner to demonstrate that it has been doing business for the previous year. The term "doing business"
is defined in the regulations as "the regular, systematic, and continuous provision of goods and/or services
by a qualifying organization and does not include the mere presence of an agent or office of the qualifying
organization in the United States and abroad." 8 C.F.R. § 214.2(l)(1)(ii). There is no provision in CIS
regulations 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. Accordingly, the
appeal will be dismissed.
Beyond the decision of the director, the petitioner failed to provide sufficient evidence to establish that a
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8
C.F.R. § 214.2(1). In the instant petition, the petitioner claims that the U.S. entity is wholly-owned by the
foreign parent company.
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 of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of
Hughes, 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. 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
SRC 06 031 51708
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affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control.
According to the incorporation documents for the foreign company, it appears that the company is owned
by In addition, the petitioner submitted the IRS Form 1120, U.S. Corporation Income
Tax Return, for 2004 whereby the petitioner indicated in Schedule E that the beneficiary owns 100% of
the common stock of the U.S. company. According to the IRS Form 1120, it appears that the petitioner is
not owned by the foreign parent company but instead is owned by the beneficiary. 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).
The petitioner has not resolved this conflicting information. As the appeal will be dismissed, the AAO
notes this deficiency for the record.
An application or petition that fails to comply with the technical requirements of the law may be denied
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),
affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting
that the AAO reviews appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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 appeal will be dismissed.
ORDER: The appeal is summarily dismissed.