dismissed L-1A Case: Convenience Store Management

Identifyingdatadeletedto -,
preventclearly unv~a~teeI\
invasionof persolltt'pnvaq
pUBLICCopy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Room 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 04 01850566 Office: TEXAS SERVICE CENTER Date: JUN 20 2007
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)
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.
VRo~=':ef
;- Administrative Appeals Office
www.uscis.gov
SRC 0401850566
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 seeks to extend the temporary employment of the beneficiary as its president as an L-l A
nonimmigrant intracompany transferee pursuant to section 101(a)( 15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The U.S. petitioner, a limited liability company organized in the
State of Georgia, claims to be engaged in the management of a convenience store. It claims to be the affiliate
of Gems International, located in Kalol, India. 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. On appeal, counsel for the petitioner asserts that the beneficiary is in fact qualified for the
benefit sought.
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)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(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.
In addition, the regulation at 8 C.F.R. § 214.2(1)(l4)(ii) provides that a visa petition, which involved the
opening of a new office, may be extended by filing a new Form 1-129, accompanied by the following:
SRC 04 01850566
Page 3
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) of this section;
(b) Evidence that the United States entity has been doing business as defined In
paragraph (l)(1)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The issue in this 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:
•• •• • • •
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(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.
In a letter dated October 22, 2003, the petitioner explained that it was established for the purpose of
purchasing or leasing an on-going enterprise, namely a convenience store or a gas station. The petitioner
further stated that in June 2003, it leased a gas station named Racetrac Petroleum. Pursuant to the
management agreement involved, the petitioner receives $15,000 per month as a management fee. The
petitioner further stated that it has an "average" of four employees on staff.
In the L Supplement for Form 1-129, the petitioner provided the following overview of the beneficiary's
duties as president of the U.S. company:
[The beneficiary] will be involved in day-to-day operational management; finance and
accounting; marketing of the gas station store; and employment and training. [The
beneficiary] will also be actively looking at other opportunities to invest in to expand the
operations of [the petitioner].
On December 15, 2003, the director requested additional evidence. The director noted that the nature of
operating a convenience stores and gas station required several employees to cover all shifts, and that there
appeared to be little work primarily at an executive level. As a result, the director requested evidence
pertaining to all of the petitioner's employees, as well as an overview of their positions and by whom if
anyone these employees were supervised. The director also requested a copy of the petitioner's work
schedule for these employees as well as payroll records to corroborate the schedule.
The petitioner submitted a response dated March 10, 2004. In the response, the petitioner explained that it
was conducting business "as a management organization, managing business functions and personnel
management for independent businesses. In addition to the gas station acquired in June 2003, the petitioner
indicated that it recently entered into a new management relationship with Talladega Hospitality, Inc., and
indicated that as of March 15, 2004, the petitioner, under the beneficiary as president, would be managing an
additional five employees at a Super 8 Motel. The petitioner noted that with this addition, the total number of
employees under the beneficiary's supervision would be seven.
Regarding the staffing of the petitioner and the work schedules of its employees, the petitioner provided an
employee list that denoted the nature and extent of the duties of each employee. The petitioner stated that the
. ed in June 2003, currently employed two persons under the beneficiary's supervision:
Store Manager; and Stocking Clerk. Five additional employees were
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listed as employees of the motel; however, no payroll records were available since the new relationship with
the motel only came into effect in March 2004. Finally, although specifically requested by the director, no
additional job description or discussion of the beneficiary's duties was submitted to supplement the record.
On March 31, 2004, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would be employed in a primarily managerial or executive
capacity. More specifically, the director concluded that the claim that the beneficiary was employed in a
qualifying capacity while there were only two other employees on staff to operate the gas station/convenience
store was not credible and was unsupported by the evidence submitted in the record.
On appeal, counsel for the petitioner attempts to refute the director's basis for the denial by contending that
the beneficiary is in fact employed in a managerial or executive capacity, and argues that the size of the
petitioner's business and number of staff members should not be detrimental to the petitioner. The AAO,
however, disagrees with counsel's assertions.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The definitions of executive and
managerial capacity have two separate requirements. 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).
The description of duties provided on the L Supplement to Form 1-129 is brief and extremely generalized.
Though the director requested additional information about the beneficiary's duties to establish that he is
employed in a qualifying capacity, the petitioner failed to provide any additional details. 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).
The AAO, therefore, must evaluate the beneficiary's position based on the brief description of duties provided
in addition to the statements pertaining to the beneficiary's subordinate staff members. For convenience, the
description of duties is repeated below:
[The beneficiary] will be involved in day-to-day operational management; finance and
accounting; marketing of the gas station store; and employment and training. [The
beneficiary will also be actively looking at other opportunities to invest in to expand the
operations of [the petitioner].
General statements such as those included above do little to clarify the exact nature of the beneficiary's
duties. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Reciting the beneficiary's vague job
SRC 04 01850566
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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 answer a critical question in this
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108.
Additionally, in response to the request for evidence, the petitioner relied upon the claim that the beneficiary
oversees seven subordinate staff members at two businesses as evidence of his managerial or executive
capacity. Upon review, however, this claim is invalid, since the second business, a Super 8 Motel, was not
acquired until March 2004. The petitioner must establish eligibility at the time of filing the nonimmigrant
visa petition. The petitioner in this matter was filed on October 23, 2003. Therefore, since the petitioner had
not yet entered into the agreement with Talladega Hospitality, Inc., the management of the hotel and the five
employees working therein will not be considered in evaluating the beneficiary's employment capacity. A
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a
new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
At the time of the filing of the petition, the record indicates that the petitioner employed a store manager and a
stocking clerk. The employment of these persons is verified by quarterly tax returns for the last two quarters
of 2003. However, the statement regarding their duties indicates that the store manager supervises the
cashier; however, no evidence of the employment of a cashier has been submitted. As a result, the petitioner
urges the AAO to accept its claim that the gas station/convenience store is fully operated by the store manger
and the stocking clerk, without any assistance in the day-to-day duties from the beneficiary.
On appeal, counsel correctly observes that a company's size alone, without taking into account the reasonable
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or
executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for
Citizenship and Immigration Services (CIS) to consider the size of the petitioning company in conjunction
with other relevant factors, such as a company's small personnel size, the absence of employees who would
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15
(D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in the
record and fails to believe that the facts asserted are true. Id.
Even though the petitioner claims that the beneficiary directs and manages the organization, it has not
established that it employs a cashier, which is an essential position for the operation of the claimed business.
Thus, the beneficiary himself must be performing this non-qualifying duty. Furthermore, an enterprise such
as a gas station and convenience store is normally open seven days a week for extended hours. It is unclear,
therefore, however two employees can manage all the daily operational and administrative tasks, particularly
since there is no cashier on staff. Furthermore, the total wages paid to the stocking clerk each quarter
($1,800) suggest that this employee works part-time, thereby once again undermining the claim that the entire
operation is managed by these two persons without assistance from the beneficiary. In either case, the AAO
is left to question the validity of the petitioner's claim and the beneficiary's claimed duties. 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).
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If the beneficiary is performing non-qualifying functions such as acting as cashier or generally working in the
store, the AAO notes that 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. 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).
While performing non-qualifying tasks necessary to produce a product or service will not automatically
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive
duties. Section 101(a)(44) of the Act. In the present matter, the petitioner fails to document what proportion
of the beneficiary's duties would be managerial functions and what proportion would be non-managerial.
Furthermore, the extremely vague description of his duties is simply insufficient to allow the AAO to draw
any legitimate conclusions with regard to the true nature of the beneficiary's position in the U.S. entity.
The record as presently constituted, therefore, is not persuasive in demonstrating that the beneficiary has been
or will be employed in a primarily managerial or executive capacity. The petitioner relies on its acquisition of
a second business in March of 2004 as evidence of the beneficiary's employment in a qualifying capacity.
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C), however, allows the intended United States operation one year
within the date of approval of the petition to support an executive or managerial position. There is no
provision in Citizenship and Immigration Services (CIS) regulations that allows for an extension of this one­
year period. If the business 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 predominantly managerial or executive position.
Based on the evidence presented, the petitioner has not reached the point that it can employ the beneficiary in
a predominantly managerial or executive position. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner submitted
a number of invoices for goods purchased which suggests that it has been selling its goods on a regular basis.
However, the earliest invoice documenting the acquisition of these goods dates back to September 2003. The
petition granting the beneficiary L-IA status to open a new office was approved in October of 2002. Thus,
pursuant to the regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(B), the petitioner is expected to submit evidence that it
has been doing business since the date of the approval of the initial petition. In the instant case, there is no
evidence that the petitioner was doing business from October 2002 to September 2003, despite the acquisition
of the gas station in June 2003. For this additional reason the petition may not be approved.
Additionally, a question to be further examined is whether the petitioner and the foreign organization are still
qualified organizations as defined by 8 C.F.R. § 214.2(1)(1)(ii)(G). The regulation defines the term
"qualifying organization" as a United States or foreign firm, corporation, or other legal entity which:
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(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraph (1)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not required) as an
employer in the United States and in at least one other country directly or through a
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United
States as an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
The record in this matter contains a number of invoices reflecting business activity of the foreign entity.
However, the most recent invoices submitted are from March 2003, and the record does not contain any
documentation of business dealings thereafter. Therefore, it does not appear that the foreign entity is still
doing business as required by 8 C.F.R. § 214.2(l)(1)(ii)(G)(2). For this additional reason, the petition may not
be approved.
Finally, the petitioner indicates that the beneficiary is the sole owner of both the U.S. and foreign companies. I
If this fact is established, it remains to be determined that the beneficiary's services are for a temporary period.
The regulation at 8 C.F.R. § 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of
the company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a
temporary period and that the beneficiary will be transferred to an assignment abroad upon the completion of
the temporary services in the United States. In the absence of persuasive evidence, it cannot be concluded
that the beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad
upon completion of his services in the United States.
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). When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds. See id.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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.
I Although the membership certificate in the record indicates that the beneficiary is the petitioner's sole
owner, the petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation, indicates that the
beneficiary actually owns 99% of the petitioner. For purposes of this analysis, the beneficiary still appears to
be the majority owner of the petitioner.
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ORDER: The appeal is dismissed.