dismissed L-1A Case: Cosmetics

identifYingdatadeletedto
p~.cJear}y unwarramed
tnvaslOll f!IperQIIJ privacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 04 08452021 Office: TEXAS SERVICE CENTER Date:
OCT 02 2001
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:
SELF~REPRESENTED
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.
R~ef
Administrative Appeals Office
www.uscis.gov
SRC 04 084 52021
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 filed this nonimmigrant visa petition seeking to employ the beneficiary as its president as an L­
lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § I 101(a)(15)(L). The petitioner is a corporation organized under the laws
of the State of Florida and is allegedly in the cosmetics business.
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.I 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 a manager or executive. In support, the petitioner submits a
brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(I)(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.
1Although the instant appeal was filed by
the record does not contain a Form G-28, Notice of Entry of Appearance as Attorney or Representative. It
appears that ~ay be affiliated with Law House Corporation, the business identified as the
preparer in the Form 1-129. However, because ppearance has not been entered, the AAO's
decision in the instant matter is being sent only to the petitioner's mailing address on record with the Florida
Department of State.
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(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 himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section lOl(a)(44)(A) of the Act, 8 U.S.C. § 1 101(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. § 1 101(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 ofthe 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 perform primarily managerial
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duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the petitioner is
asserting that the beneficiary will be employed in either a managerial or an executive capacity and will
consider both classifications.
The petitioner described the beneficiary's proposed job duties in a letter dated January 27,2004 as follows:
1. Recruiting, hiring, firing staffs including supervisors and managers;
2. Full responsibility for the direction and coordination of activities and operation of the
corporation;
3. Responsible for planning, formulating and implementing administrative and
operational policies and procedures;
4. Supervising any other manager or professional;
5. Engaging in long-range planning and identifying business opportunities in the US
and international markets;
6. Conducting general administration affairs of the company;
7. Cash-management
In addition to the above, [the beneficiary] will act as a liaison and representative for the
petitioner's foreign parent in the US, market the services of the parent company, etc.
The petitioner also submitted an organizational chart for the United States operation portraying the
beneficiary, i.e., the "president," as supervising directly and indirectly a variety of subordinate workers.
However, the chart does not reveal the identity of these workers and states that the chart will be effective by
December 31, 2004. The instant petition was filed on January 29,2004. Therefore, it does appear that the
petitioner had any employees when the instant petition was filed.
On February 10, 2004, the director requested additional evidence. The director requested, inter alia, evidence
that the beneficiary will primarily perform qualifying managerial or executive duties, tax returns, and a
description of the petitioner's other employees.
In response, the petitioner submitted a letter dated April 14, 2004 in which it explains that, although it has
been operating since 2001, the petitioner does not as yet have any employees. Since its inception, the
petitioner has used the services of other companies in the United States to import and distribute its cosmetics
and there was no need for employees. The petitioner also explained that the beneficiary will hire a
subordinate staff that will relieve him of the need to perform non-qualifying duties. Finally, the petitioner
submitted an updated organizational chart, which now indicates that it will be effective by June 30, 2004.
On April 27, 2004, 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 a manager or an executive.
The petitioner also argues that it has plans to expand its business in the United States and to hire subordinate
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employees who will relieve the beneficiary of the need to perform non-qualifying duties.
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(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. As explained above, a petitioner cannot claim that some of
the duties of the position entail executive responsibilities, while other duties are manageria1. A petitioner may
not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of
the two statutory definitions.
As a threshold matter, it must be noted that petitioner's assertion regarding its expansion and hiring plans as
these relate to the beneficiary's employment as a manager or executive is not relevant to the instant petition.
The record indicates that the petitioner has been doing business in the United States since 2001. Therefore,
because the petitioner is not a "new office," the petitioner must establish that the beneficiary will primarily
perform qualifying managerial or executive duties immediately upon approval of the petition. See 8 C.F.R.
§§ 2l4.2(l)(1)(ii)(F) and 2l4.2(l)(3)(v). The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). Therefore, the petitioner's plan to expand its business and hire a subordinate staff which may
relieve the beneficiary of the need to perform non-qualifying tasks will not establish eligibility under this visa
classification. To the contrary, the petitioner must establish that it has the organizational complexity to justify
the employment of a truly managerial or executive employee at the time the petition is filed.
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" 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. For example, the petitioner states that the beneficiary will be "[r]esponsible for
planning, formulating and implementing administrative and operational policies and procedures" and will be
"[e]ngaging in long-range planning and identifying business opportunities." 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 title and has prepared a vague job description which includes inflated
duties does not establish that the beneficiary will actually perform managerial duties. Broad, conclusory
statements such as those found in the instant job description are not probative of the beneficiary's performance
of 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, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him. This is particularly important in this matter because some of the duties listed by
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the petitioner appear to be non-qualifying administrative or operational tasks which do not rise to the level of
being managerial or executive in nature. For example, the petitioner states that the beneficiary will conduct
the "general administration affairs of the company," engage in "cash management," and will "market the
services of the parent company." However, office administration and marketing duties constitute
administrative or operational tasks when the tasks inherent to these duties are performed by the beneficiary.
As the organizational chart fails to identify any employees who will relieve the beneficiary of the need to
perform the non-qualifying tasks inherent to these duties, it must be concluded that he will perform these
tasks upon his arrival in the United States. 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 be "primarily"
employed as a manager. 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). Given the petitioner's description of the United States operation, it is more likely than not that the
beneficiary wi)) primarily perform non-qualifying tasks. See generally Family, Inc. v. Us. Citizenship and
Immigration Services, 469 F.3d 1313 (9th Cir. 2006)?
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.
As explained in the organizational chart, the beneficiary will not supervise any employees upon the approval
of the petition because the beneficiary would be the petitioner's first and only employee. As explained above,
the beneficiary's planned management of a subordinate staff sometime in the future will not establish that the
beneficiary will be employed in a managerial or executive capacity upon petition approval. Furthermore,
while the petitioner has asserted that it employs 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 Act; 8 C.F.R. § 2l4.2(l)(l)(ii)(B)(2). The Act is quite clear that
only the management of employees may be considered to be a qualifying managerial duty for purposes of this
visa classification. Regardless, the petitioner has not established that these independent contractors are
professional employees.)
2Although the petitioner has alleged that it employs independent contractors to distribute its products, the
petitioner has not established that these independent contractors will relieve the beneficiary of performing
non-qualifying tasks inherent to his ascribed duties, e.g., office administration, marketing, and cash
management. 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 Treasure Craft of California, 14
I&N Dec. 190.
3In 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. § 1101(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
SRC 04 084 52021
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In view of the above, the beneficiary would appear to be at most a first-line supervisor of non-professional
independent contractors, 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of
Church Scientology International, 19 I&N Dec. at 604. Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.4
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 10I(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." !d. 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
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).
4Whilethe 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(1)(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. 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 will be managerial, if any, and what
proportion will be non-managerial. Also, as explained above, the record establishes that the beneficiary will,
at most, be a first-line supervisor of non-professional independent contractors and/or will be engaged in
performing 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).
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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, at most, employed as a first-line
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
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).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity.
Title 8 C.F.R. § 214.2(i)(I)(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)(I)(ii) of this section" and "is or will be doing business." An
"affiliate" is defined in pertinent part as "[o]ne of two subsidiaries both of which are owned and controlled by the
same parent or individual." 8 C.F.R. § 214.2(l)(1)(ii)(L)(J).
In this matter, the petitioner has asserted that it and the foreign entity are both owned and controlled by a
Brazilian business organization, Tahiti Participacoes Ltd. In support of this assertion, the petitioner submitted
organizational documents and a stock certificate purporting to issue 500 shares of stock to the parent company.
However, in response to the director's Request for Evidence, the petitioner submitted copies of its 2001 and 2002
Forms 1120, U.S. Corporation Income Tax Returns. In these tax returns, the petitioner asserted in the schedules
"K" that it was not a subsidiary, that no one owner owned 50% of more of the petitioner's stock, and that no
foreign persons owned at least 25% of the petitioner's stock. All of these averments, which were made on both
the 2001 and 2002 returns, are inconsistent with the petitioner's assertion in the Form 1-129 that it is 100% owned
by a foreign business entity. The petitioner offers no explanation for this serious inconsistency 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, in view of the unresolved inconsistencies in the record regarding the petitioner's ownership and
control, it cannot be confirmed that the petitioner is a qualifying organization, and the petition may not be
approved for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed abroad
in a primarily executive or 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 did on a
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day-to-day basis. For example, the petitioner described the beneficiary's duties abroad in the Form 1-129 as
follows:
[The beneficiary] has been responsible for the direction, coordination or activities and
operation of the Brazilian parent company. He also supervises managers and professionals.
Once again, the fact that the petitioner has given the beneficiary a managerial or executive title and has
prepared a vague job description which includes inflated duties does not establish that the beneficiary actually
performed 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, aff'd, 905
F.2d 41. Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. MaUer of Treasure Craft ofCalifornia, 14 I&N Dec. 190.
Furthermore, the organizational chart for the foreign entity is untranslated and fails to describe the duties of
any of the claimed subordinate employees. Because the petitioner failed to submit a certified translation of
the document, the AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R.
§ 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any weight in this
proceeding.
Accordingly, the petitioner has failed to establish that the beneficiary was employed abroad in a managerial or
executive capacity, and the petition may not be approved for this additional reason.
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 Dar 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, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.