dismissed L-1A Case: Education

~"'dI~to
prevent cle4lrlyUIlwaTMted
invasionofperlOMlprivacy
PUBuCCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 04 209 53258 Office: TEXAS SERVICE CENTER Date: tX:T 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. § 110l(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~ief
Administrative Appeals Office
www.uscis.gov
SRC 04 209 53258
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 marketing
director as an L-IA 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 underthe laws of the State of Florida and is allegedly a preschool and development center.
The director denied the petition concluding that the petitioner did not establish that the beneficiary was
employed abroad in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director
erred and that the beneficiary's duties were primarily those of a manager or executive.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section IOI(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 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.
The primary issue in the present matter is whether the beneficiary was employed abroad in a primarily
managerial or executive capacity.
SRC 04 209 53258
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Section lOl(a)(44)(A) of the Act, 8 U.S.C. § l101(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 ftrst-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. § I 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 of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneftciary performed primarily managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act. A petitioner may not claim that the beneficiary was 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 was employed in either a managerial or an executive capacity
and will consider both classifications.
The petitioner described the beneftciary's job duties abroad in a letter dated July 20, 2004 as follows:
[The beneficiary's] duties included[:] determining the demand for products and servIces,
SRC 04 209 53258
Page 4
identifying potential customers, developing pricing strategies with the goal of maximizing the
firm's profits and the increase of market share, quality control over the company's goods and
services, product research and development, testing the market for the development of new
products and services.
The petitioner also submitted an organizational chart for the foreign entity which shows the beneficiary
reporting to a general manager and supervising a "public relations" employee, a "sales" employee, and a
"marketing assistant."
On August 3, 2004, the director requested additional evidence. The director requested, inter alia, descriptions
of the foreign duties of the beneficiary and the other employees of the foreign entity.
In response, the petitioner submitted a translation of a letter from the foreign entity dated August 5, 2004
describing the beneficiary's duties abroad as follows:
The duties of the Marketing Manager are to coordinate and lead the work of all personnel
under her supervision, including:
a) Identify market trends and plan in terms of comparative advantages and existing
opportunities. This takes about 10% of her time.
b) Order, evaluate, and execute promotional activities and publicity through the PR
Department. This takes about 20% of her time.
c) Control of sales and customers, through the Sales Department. This takes about 50%
of her time.
d) Supervision and handling of budget and personnel. This takes about 10% of her
time.
e) Internal operational control, meetings, report preparation, and interviews. This takes
about 10% of her time.
The foreign entity also described the beneficiary's subordinate employees -- the "head of public relations," the
"head of the sales department," and the "marketing assistant." All three of these workers appear to be
engaged in performing the tasks necessary to produce a product or to provide a service, e.g., visiting
customers, organizing events, preparing reports, billing, and ordering. While the "sales" employee is
described vaguely as spending 10% ofhi~ time coordinating and briefing a "sales force," the record is devoid
of specific evidence regarding the existence, size, or duties of this "force."
On August 20, 2004, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary was primarily employed abroad in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties were primarily those of a manager or an
executive.
Upon review, the petitioner's assertions are not persuasive.
SRC 04 209 53258
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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. §§ 2l4.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such
duties were either in an executive or managerial capacity. Id. As explained above, a petitioner cannot claim
that some of the duties of the position entailed executive responsibilities, while other duties were managerial.
A petitioner may not claim that a beneficiary was employed as a hybrid "executive/manager" and rely on
partial sections of the two statutory definitions.
In this matter, the petitioner's description of the beneficiary's job duties has failed to establish that the
beneficiary acted 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 did on a
day-to-day basis. For example, the petitioner states that the beneficiary determined "the demand for products
and services," developed "pricing strategies," controlled "product research and development," and spent half
of her time controlling "sales and customers." However, the petitioner does not explain what, exactly, the
beneficiary did to perform these duties. The fact that the petitioner has given the beneficiary a managerial
title and has prepared a vague job description which includes inflated job duties does not establish that the
beneficiary actually performed managerial duties. Broad, concIusory 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 were 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.V. 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).
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart and job descriptions, the beneficiary appears to have supervised a
"public relations" employee, a "sales" employee, and a "marketing assistant." While the petitioner gave two
ofthese employees more impressive titles in response to the Request for Evidence ("head of the department of
public relations" and "head of the sales department"), job titles alone do not establish that subordinate workers
are supervisory, managerial, or professional employees. In this matter, the job descriptions for these three
subordinate workers fail to establish that they were truly supervisory or managerial employees. To the
contrary, these workers appear to have performed the tasks necessary to produce a product or to provide a
service, e.g., visiting customers, organizing events, preparing reports, billing, and ordering. While the "sales"
employee is described vaguely as spending 10% of his time coordinating and briefing a "sales force," the
record is devoid of specific evidence regarding the existence, size, or duties of this "force." Once again,
going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Id.
In view of the above, the beneficiary would appear to have been, at most, a first-line supervisor of non­
professional employees, the provider of actual services, or a combination of both. 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
SRC 04 209 53258
Page 6
(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). 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. Furthermore, the petitioner has not established that the
subordinate employees were professional employees.l Therefore, the petitioner has not established that the
beneficiary was employed primarily in a managerial capacity.2
Similarly, the petitioner has failed to establish that the beneficiary acted 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.
lIn evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the
subordinate positions required 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 termprofession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
2While the petitioner has not argued that the beneficiary managed 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. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties were managerial, if any, and what
proportion were non-managerial. Also, as explained above, the record establishes that the beneficiary was, at
most, a first-line supervisor of non-professional workers and/or performed non-qualifying operational or
administrative tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing
her duties, the AAO cannot determine what proportion of her duties were managerial, nor can it deduce
whether the beneficiary primarily performed the duties of a function manager. See IKEA US, Inc. v. US.
Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
SRC 04 20953258
Page 7
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 acted primarily-in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary was, at most, employed as a first-line supervisor
and likely performed the tasks necessary to produce a product or to provide a service. Finally, the
organizational chart of the foreign employer indicates that the beneficiary reported to a general manager who,
in turn, reported to a president. It appears that any authority to realistically direct the organization would have
been vested in these individuals and not in the beneficiary. Therefore, the petitioner has not established that
the beneficiary was employed primarily in an executive capacity.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial or executive duties abroad, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner also failed to establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner described the beneficiary's proposed job duties as "marketing director" in a letter dated July 20,
2004 as follows:
As director for Marketing [the beneficiary's] immediate goal is to increase the student
enrollment through an aggressive advertising· campaign. She will also be responsible for
establishing a research and development plan in order to evaluate the [petitioner's] services
and implement plans to improve them. She will also be responsible for the research and
development of a business plan to evaluate the best area for the business expansion for a new
day care center in the Central Florida area. She will also be working closely with the parents
of the enrolled children in order to gather their input, evaluate the information and suggest to
the center's management on implementing services to meet the needs of the customers more
effectively.
The petitioner also submitted two organizational charts. The first chart describes the _petitioner's
organizational structure without the beneficiary. It shows a president supervising a secretary who, in tum, is
shown supervising eleven teachers and assistant teachers. The second chart describes the petitioner's
proposed organizational structure, which includes the beneficiary. It shows the beneficiary, the marketing
manager, reporting directly to the president and supervising all other employees including the secretary, the
teachers, the assistant teachers, a maintenance manager, a cook, a housekeeper, and an administrative
assistant.
In response to the Request for Evidence, the petitioner submitted a letter dated August 6, 2004, which further
SRC 04 209 53258
Page 8
describes the beneficiary's proposed duties. The letter explains, inter alia, that the beneficiary's "primary duty
will be to manage an essential function within the organization which is the marketing department," even
though she is also described as supervising the teachers and other administrative personnel "in the
implementation of the marketing strategies." The petitioner also stated in the letter that it employs eleven
people and attached job descriptions for its employees. None of the employees is described as working in a
"marketing department" or as performing marketing related tasks.
Finally, the petitioner submitted a breakdown of how much time the beneficiary will devote to each of her
duties. As this description is in the record, it will not be repeated here. Generally, the beneficiary is
described as primarily performing marketing tasks such as market research, promotions, web site
development, advertising, establishing contacts in the community, and organizing events.
Upon review, the petitioner has failed to establish that the beneficiary will be employed in the United States
in a primarily managerial or executive capacity. Most of the duties ascribed to the beneficiary appear to be
non-qualifying administrative or operational tasks which do not rise to the level of being managerial or
executive in nature. Marketing duties constitute administrative or operational tasks when the tasks inherent to
these duties are performed by the beneficiary. As the organizational chart and job descriptions for the
subordinate employees fail to identify any employees who will relieve the beneficiary of the need to perform
the non-qualifying tasks inherent to the sales and marketing duties, it must be concluded that she will perform
these tasks. An employee who "primarily" performs the tasks necessary to produce a product or to provide
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections
101(a)(44)(A) and (B) of the Act; see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
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.
While the organizational chart indicates that the beneficiary will supervise over ten employees, including all
of the teachers and assistant teachers, this claim is simply not credible given the beneficiary's job description.
As explained above, the petitioner describes the beneficiary as devoting almost all of her time to performing
marketing tasks. The supervision of teachers or assistant teachers is not listed among her duties. Arbitrarily
placing a beneficiary on an organizational chart in a position superior to certain employees does not establish
that the beneficiary will truly supervise and control those employees. An employee will not be considered to
be a supervisor simply because of a job title. Rather, the employee must be shown to possess some
significant degree of control or authority over the employment of subordinates. See generally Browne v.
Signal Mountain Nursery, L.P., 286 F.Supp.2d 904,907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas,
Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11, 2007». In this matter, it has not been established that the
beneficiary will truly supervise and control any of the subordinate employees.
In view of the above, it appears that the beneficiary will be primarily a first-line supervisor of non­
professional employees, the provider of actual services, or a combination of both. A managerial employee
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor,
unless the supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of
SRC 04209 53258
Page 9
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.3
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. As
explained above, it appears that the beneficiary will primarily perform non-qualifYing marketing tasks and
will not perform executive duties.
Accordingly, the petitioner has failed to establish that the beneficiary will be employed 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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises. 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.
3The petitioner has also failed to establish that the beneficiary will manage an essential function of the
organization, i.e., manage the marketing department. As explained above, the petitioner's description of the
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than perform
the tasks related to the function. In this matter, as it appears that the beneficiary will perform marketing tasks
rather than manage the marketing function, the petitioner has not es.tablished that the beneficiary will perform
the duties of a function manager. See generally IKEA US, Inc., 48 F. Supp. 2d 22.