dismissed L-1A Case: Corporate Communication And Market Research

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... PUBLICCOpy·
U;S.I)eparfment.·ofHomeland(Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Cit.izenship
and Immigration
Services
File: WAC 05 198 50627 Office: CALIFORNIA SERVICE CENTER Date: . HAY 0 1 2007
IN RE: Petitioner:
Beneficiary:
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)
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.
~_.~
Robe~ann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 19850627
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a noriimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAOwill dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its chief executive
officer 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 claims. to be engaged in the business of corporate
communication and market research. 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.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive. In support of this assertion, the petitioner submits
a brief and additional evidence.
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 te:mporarilyto continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
speclalized 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 (I)(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 ofthe 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.
WAC 05 198 50627
Page 3
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also 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:
(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)(l)(ii)(H) of this section for the previous year;
(C) Astatement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial s.tatus of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a prim~rily 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)
(ii)
(iii)
(iv)
I
manages the organization, or a department, subdivision, function, or component of
the organization;
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;
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
exercises discretion over the day t6 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 lOl(a)(44)(B) of the Act, 8 U.S.c. § llOl(a)(44)(B), defines the term "executive capacity" as an
WAC 05 198 50627
Page 4
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 petitipn wh~ther the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. On appeal, counsel to the petitioner claims that the beneficiary is employed
as an executive. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on
partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary as both
an executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth in
the statutory definition for executive and the statutory definition for manager. Given the lack of clarity, the
AAO will assume that the petitioner is asserting that the beneficiary is employed either as an executive or a·
manager and will consider both classifications.
The petitioner described the beneficiary's job duties in an attachment to the initial petition and in a letter dated
June 26,2005. As the attachment and this letter are in the record, the totality of the job description will not be
repeated here. Generally, the beneficiary is described as being engaged in business development activities in
promoting the services of the foreign entity to customers in the United States. The beneficiary is also
described as overseeing the performance of all business functions in Israel.
On August 8, 2005, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the petitioner, wage reports, and a more detailed description of the beneficiary's job
duties.
In response, the petitioner provided a letter dated September 18, 2005 in which it further describes the
beneficiary's job duties in the United States. As this letter is in the record, the totality of the description will
not be repeated here. Generally, the petitioner describes the beneficiary as developing and managing business
opportunities with an emphasis on locating "new strategic partnerships and business cooperation." The
petitioner explained that the beneficiary spends 50% of his time developing marketing and public relations
business for the foreign entity and an affiliated overseas company and 50% of his time promoting business
activities for an affiliated California limited liability company. The petitioner provided specific examples of
business development activities and transactions which involved the beneficiary. Finally, the petitioner
describes the beneficiary as planning and developing the organization's business development strategies and
as "the leading US based resource regarding the [foreign organization]:"
The petitioner also provided wage reports which reveal that it has no employees in the United States. The
WAC 05 198 50627
Page 5
beneficiary is paid by the foreign entity.
On August 25, 2005, 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.
Title 8 C.F.R. § 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of·
the petition to support an executive or managerial positio~. There is no provision in Citizenship and .
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has' not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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 petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary win primarily be employed in a managerial or executive capacity. As explained above, a
petitioner cannot claim that some of the duties of the position entail.executive responsibilities, while other
duties are managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely
on partial sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary' will do on a day-to-day
basis. The fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job
description does not establish that the beneficiary win actually perform managerial duties. While the
petitioner has provided examples of contracts and business deals which apparently involved the beneficiary in
the past, the petitioner fails to define with any specificity what the beneficiary will do on a day-to-day basis.
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive Of
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), afj'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..
Cornm. 1972).
The most that can be gleaned from the job description and examples provided by the petitioner is that the
beneficiary promotes the foreign entity's services in the United States, negotiates the terms of agreements with
United States customers, and continues to playa role in the management of the foreign entity. Not only is this
job description vague, the job duties ascribed to the beneficiary appear to be either non-qualifying operational
WAC 05 198 50627
Page 6
tasks or non-qualifying services being provided to the foreign entity. The act of marketing or promoting a
service is not a managerial duty and may not be used to qualify a beneficiary as a managerial employee ..
. Likewise, the provision of services, even managerial or executive services, to the foreign entity may not be
used to qualify a beneficiary as an L-1 intracompany transferee. Importantly, the vague job description in this
case does not reveal what percentage of time the beneficiary devotes to providing services to the overseas
entity, to promoting the petitioner's services, or to performing allegedly managerial or executive duties.
Absent such a credible and specific breakdown of the beneficiary's duties, it cannot be determined that the
beneficiary is "primarily" employed in a managerial capacity. An employee who "primarily" performs
services for the overseas entity, or "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 Iizternational, 19 I&N Dec. 593, 604 (Corum. 1988)
and 8 C.F.R. § 214.2(1)(1)(ii)(A) (defining an intracompany transferee as one who will provide services to the
United States entity).
Moreover, the record in its totality indicates that the beneficiary has not and will not be employed by a United
States entity and is therefore not an intracompany transferee as defined in the regulations. The beneficiary
appears to be an agent or representative for the foreign entity in selling and promoting its services to United
States customers. Not only are such duties not qualifying managerial or executive duties (see supra), these
services do not constitute the rendering of services to a qualifying organization in the United States.
Therefore, even if these duties could be construed to be managerial or executive in nature, the record does not
establish that these services are being rendered to the petitioner but to the foreign entity. Moreover, the fact
that the petitioner sent invoices and received payment for services rendered by the foreign entity overseas
does not establish that the beneficiary is providing services to the petitioner. The use of the petitioner as a
shell to receive payment when it employs no one, and provides no services itself, will not entitle it to classify
the beneficiary as an L-1A manager or executive when, in reality, all of the services are being provided by the
foreign entity.
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.
A:s explained in the record, the petitioner has no employees. Even the beneficiary is employed and paid by
the foreign entity. Therefore, the beneficiary cannot be said to be managing employees. Moreover, while the
petitioner has not specifically argued that the beneficiary manages 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
manages the function rather than performs the duties related to the function.
WAC 05 198 50627
Page 7
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. As
explained above, 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, e.g., promoting
or rendering services to the foreign entity. 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 would be
managerial, nor can it deduce whether the beneficiary is primarily performing ~he duties of a function
manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
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 be acting primarily in an executive capacity. As explained above, the
beneficiary appears to be either performing non-qualifying operational tasks or rendering services directly to
the foreign entity. Therefore, the petitioner has not established that the beneficiary will be employed
primarily in an executive capacity.
Although a company's size alone, without taking into account the reasonable needs of the organization, may
not be the determining factor in granting a visa to a multinational manager or executive (see § 101(a)(44)(C)
of the Act), it is appropriate for 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). Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff
in the context of reviewing the claimed managerial or executive duties. The petitioner must still establish that
the beneficiary is to be employed in the United States in a primarily managerial or executive capacity,
pursuant to sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established
this essential element of eligibility, and the petition may not be approved for that reason.
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.
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 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 bur.den of proof in a
WAC 05 198 50627
Page 8
subsequent petition. See section 291 of the Act, 8 U.S.c. § 1361.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: .The appeal is dismissed.
•