dismissed L-1A Case: Electrical And Mining Equipment

identifying data deleted to
prevent clearlv unwarranted
invasion of personal privacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
EAC 05 082 51476
Petitioner:
Beneficiary
Office: VERMONT SERVICE CENTER Date: NOV 06 20Ub
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:
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.
t~JtL
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 05 082 51476
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner claims to be a branch office 0 - Coperasa located
in Peru. The petitioner states that the United States entity is engaged in "foreign business." Accordingly,
the United States entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary
as a nonimmigrant intracompany transferee (L-IA) pursuant to section 101(a)(l5)(L) ofthe Act (the Act),
8 U.S.c. § 1l01(a)(l5)(L). The beneficiary was initially granted a one-year period of stay to open a new
office in the United States and the petitioner now seeks to extend the beneficiary's stay in order to
continue to fill the position of president.
The director denied the petition concluding that the record contains insufficient evidence to demonstrate:
(1) that the beneficiary will be employed in a managerial or executive capacity; and, (2) that the United
States entity and the foreign entity are doing business as required by the regulations.
The petitioner subsequently filed an appeal on July 28, 2005. 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
beneficiary "is the only person in charge to perform the managerial duties to carry out our business plan."
The petitioner further asserts that the petitioning organization and the foreign entity are doing business.
The petitioner submits a brief statement in support of the appeal.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) further 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)(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 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
EAC 0508251476
Page 3
prior education, trammg, 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 regulation at 8 C.F.R. § 214.2(l)(14)(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)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(I)(ii)(H) ofthis 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 ofthe financial status of the United States operation.
The first issue to be addressed in this proceeding is whether the petitioner has established that the
beneficiary will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides:
The term "managerial capacity" means 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
EAC 0508251476
. Page 4
(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), provides:
The term "executive capacity" means 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 nonimmigrant petition was filed on January 31, 2005. In support of the petition, the petitioner
submitted the beneficiary's resume. The resume does not clearly indicate the job duties performed by the
beneficiary in the past year as the general manager of the U.S. entity. Instead, the beneficiary's resume
generally outlines the beneficiary's experience in his entire career.
On February 28, 2005, the director requested additional information in order to proceed with the petition.
In part, the director requested that the petitioner submit evidence that establishes the duties performed by
the beneficiary in the past year and the duties he will perform if the petition is extended. In addition, the
director requested a detailed statement explaining the exact job duties for each employee in the U.S.
company, including their educational background, and prior job experience, and evidence that these
employees are actually hired by the U.S. company.
In its response, the petitioner submitted a detailed job description for the position offered to the
beneficiary. The job duties were described as the following:
• Provide fiscal administrative management, control budgets, revenues and
expenditures.
• Identify, contact and do follow up on potential customers.
• Create, implement and follow up sales strategies to achieve global business
objectives.
• Identify, contact and do follow up on potential suppliers.
• Develop and implement communication to ensure diffusion of inventory and services
to customers in all geographic locations.
EAC 05 082 51476
Page 5
• Plan, organize and prepare the technical and economic proposals for customers and
distributors.
• Build a database to ensure consistency of information contained in proposals.
• Help to ensure sales quotas.
• Negotiate commercial alliances with potential suppliers in the Untied States.
• Negotiate commercial alliances with potential distributors abroad.
• Provide assistant and routine consultation to users of electrical and rmmng
equipment.
• Recommend selection and acquisition of electrical and rmnmg equipment and
services.
• Organize, monitor and supervise office and administrative support services to achieve
productivity and to achieve desired goals.
In addition, the petitioner submitted the duties to be carried out by the beneficiary if the extension of stay
is approved. The list of duties included traveling to Peru, Bolivia, Argentina and Brazil mainly to
"subscribe contracts of representation with distributors" in those markets. In addition, the petitioner
indicated that the beneficiary "will participate in every technical and commercial event related to
electricity, oil and mining in or abroad the United States."
The petitioner also submitted a letter from the beneficiary indicating that the U.S. company has hired the
beneficiary as the President and General Manager of the U.S. entity, and has hired one additional
employee who is "in charge ofthe Administrative Area."
On July 1, 2005, the director denied the petition on the ground that the petitioner did not sufficiently
demonstrate that the beneficiary will be hired in an executive or managerial capacity with the U.S. entity.
On appeal, the petitioner asserts that "at the present time the beneficiary, who is the President and main
Executive of the Society, is the only person in charge to perform the managerial duties to carry out our
business plan."
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be
employed in a managerial or executive capacity. 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). 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 definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the
EAC 05 082 51476
.: Page 6
beneficiary's duties include "provide fiscal administrative management, control budgets, revenues and
expenditures," and "develop and implement communication to ensure diffusion of inventory and services
to customers in all geographic locations." Reciting the beneficiary's vague job responsibilities or broadly­
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41
(2d. Cir. 1990). The petitioner's descriptions of the beneficiary's position do not identify the actual duties
to be performed, such that they could be classified as managerial or executive in nature.
The description also includes several non-qualifying duties such as the beneficiary will "identify, contact
and do follow up on potential customers," "create, implement and follow up sales strategies to achieve
global business objectives," "identify, contact and do follow up on potential suppliers," and "negotiate
commercial alliances with potential suppliers in the United States." Without further explanation, these
duties suggest that the beneficiary is directly involved in the company's marketing, sales and promotion
activities rather than supervising others who perform non-managerial duties related to these functions.
An employee who "primarily" performs the tasks necessary to produce a product or 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).
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather
the AAO must determine based on the totality of the record whether the description of the beneficiary's
duties represents a credible account of the beneficiary's role within the organizational hierarchy. As noted
by the director, the record does not demonstrate that the petitioner has any employees to perform the
routine non-executive and non-managerial functions of the business.
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has
been or will be employed in a primarily managerial or executive capacity. The petitioner has not
demonstrated that the U.S. company has hired additional employees who would relieve the beneficiary
from performing primarily non-qualifying duties associated with operating a business. The beneficiary
submitted a letter indicating that the company also hired an employee in the administrative area, however,
the petitioner did not submit any documentation to establish that this individual was actually hired by the
company. The petitioner did not submit pay stubs, Federal Tax Returns or the company's Employer's
Quarterly Reports to establish that the U.S. entity has hired the beneficiary and one additional employee.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
As the United States company has not hired any employees, it is reasonable to assume, and has not been
proven otherwise, that the beneficiary will be performing all sales, acquisition and marketing functions
and financial development, and all of the various operational tasks inherent in operating a company on a
daily basis, such as acquiring new businesses, negotiating contracts, paying bills, and performing
marketing functions. Again, an employee who "primarily" performs the tasks necessary to produce a
EAC 05 082 51476
Page 7
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 executi ve duties); see also Matter of Church Sci entology Int'l., 19 I&N Dec.
593, 604 (Comm. 1988) . Based on the record of proceeding , the beneficiary's job duties are principally
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or
executive role. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows the United States operation one year
within the date of approval of the petition to support an executive or managerial position . There i s no
provision in CIS regulations that allows for an extension of this one-year period . If the petitioner does not
have sufficient staffing after one year to relieve the beneficiary from primarily performing non-qualifying
operational and administrative tasks, 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. For the foregoing reasons, the appeal will be dismissed.
The second issue in this proceeding is whether the United States entity is doing business as defined in the
regulations.
The regulations at 8 C.F .R. § 214.2(l)(l)(ii)(G) state:
Qualifying organization means a United States or foreign firm, corporation , or other legal
entity which:
(1) Meet s exactly one of the qualifying relationships specified in the
definitions of a parent , branch, affiliate or subsidiary specified in
paragraph (1)(l)(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)(l 5)(L) of the
Act.
The regulations at 8 C.F .R. § 214.2(1)(1)(ii)(H) state:
Doing business means the regular , systematic, and continuous provision of goods and/or
services by a qualifying organization and does not include the mere presence of an agent
or office of the qualifying organization in the United States and abroad.
The nonimmigrant petition was filed on January 31, 2005. The petitioner did not submit any
documentation to support that the U.S. entity has been doing business during the prior year. On February
28, 2004, the director specifically requested that the petitioner submit evidence demonstrating that the
United States entity and the foreign organization has engaged in the regular, systematic and continuous
provisions of goods or services. In it response , the beneficiary submitted a letter from the beneficiary
EAC 0508251476
Page 8
stating that the foreign organization and the United States entity has been doing business. In addition, the
petitioner submitted a list of the petitioner's clients; a list of North American suppliers of electric and
mining equipment; copies of correspondence received from North American manufacturers of mining
equipment and suppliers "with whom [the petitioner] will engage in commercial agreement," and several
documents that were not translated into English. Because the petitioner failed to submit certified
translations of the documents, 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.
The director denied the petition on the ground that the petitioner did not establish that the U.S. entity is
doing business. On appeal, the petitioner states that the U.S. entity "is not, nor will be, a mere office or
agency of a qualified organization."
On review, the evidence submitted is insufficient to establish that the U.S. entity has been or is engaged in
the regular, systematic, and continuous provision of goods and/or services as a qualifying organization.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The petitioner submitted a list of the petitioner's clients and a list of North American suppliers of electric
and mining equipment. The petitioner did not submit any documentation to demonstrate that the U.S.
entity is currently doing business such as financial statements, bank statements, IRS Federal Tax Returns,
and/or copies of invoices. A letter from the beneficiary himself declaring that the U.S. entity is doing
business is not sufficient evidence to demonstrate that the U.S. entity is engaged in the regular,
systematic, and continuous provision of goods and/or services as a qualifying organization. In addition,
the petitioner failed to demonstrate that the U.S. entity has any assets, inventory or salaried employees.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». It is implausible that a
company is doing business if it has not hired any additional individuals to run the business operations.
The petitioner does not explain how the U.S. company was doing business with only one employee. 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).
In addition, as noted above, the petitioner submitted copies of correspondence received from North
American manufacturers of mining equipment "with whom we will engage in commercial agreement."
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).
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States operation one year within
the date of approval of the petition to establish the new office. Furthermore, at the time the petitioner
seeks an extension of the new office petition, the regulations at 8 C.F.R. § 214.2(l)(14)(ii)(B) requires the
EAC 05 082 51476
Page 9
petitioner to demonstrate that it has been doing business for the previous year. The term "doing business"
is defined in the regulations as "the regular, systematic, and continuous provision of goods and/or services
by a qualifying organization and does not include the mere presence of an agent or office of the qualifying
organization in the United States and abroad." 8 C.F.R. § 214.2(1)(1)(ii). There is no provision in CIS
regulations that allows for an extension of this one-year period. If the business is not sufficiently
operational after one year, the petitioner is ineligible by regulation for an extension. Accordingly, the
appeal will be dismissed.
Beyond the decision of the director, the petitioner failed to provide sufficient evidence to establish that a
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8
C.F.R. § 214.2(1). In the instant petition, the petitioner claims that the U.S. entity is a branch office of the
foreign company.
In defining the nonimmigrant classification, the regulations specifically provide for the temporary
admission of an intracompany transferee "to the United States to be employed by a parent, branch,
affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. § 214.2(1)(l)(i)
(emphasis added). The regulations define the term "branch" as "an operating division or office of the
same organization housed in a different location." 8 C.F.R. § 214.2(1)(l)(ii)(J). CIS has recognized that
the branch office of a foreign corporation may file a nonimmigrant petition for an intracompany
transferee. See Matter ofKloetti, 18 I&N Dec. 295 (Reg. Comm. 1981); Matter ofLeblanc, 13 I&N Dec.
816 (Reg. Comm. 1971); Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter of
Penner, 18 I&N Dec. 49, 54 (Comm. 1 982)(stating that a Canadian corporation may not petition for L-IB
employees who are directly employed by the Canadian office rather than a United States office). When a
foreign company establishes a branch in the United States, that branch is bound to the parent company
through common ownership and management. A branch that is authorized to do business under United
States law becomes, in effect, part of the national industry. Matter ofSchick, supra at 649-50.
Probative evidence of a branch office would include the following: a state business license establishing
that the foreign corporation is authorized to engage in business activities in the United States; copies of
Internal Revenue Service (IRS) Form l120-F, U.S. Income Tax Return of a Foreign Corporation; copies
IRS Form 941, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies
of a lease for office space in the United States; and finally, any state tax forms that demonstrate that the
petitioner is a branch office of a foreign entity. In the instant matter, the petitioner did not submit any
evidence to demonstrate that the petitioner has opened a branch office in the United States. Thus, the
appeal will be dismissed.
Beyond the decision of the director, the petitioner indicated that the beneficiary and his spouse each own
99.98 percent of the foreign entity, and thereby of the petitioning company. 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 this matter, the petitioner has not furnished evidence that the
EAC 05 082 51476
Page 10
beneficiary's services are for a temporary period and that the beneficiary will be transferred abroad upon
completion of the assignment. The petitioner indicated on Form 1-129 that it is seeking to extend the
beneficiary's status perpetually. For this additional reason, the appeal must be dismissed and the petition
denied.
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),
afJ'd. 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. 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.
ORDER: The appeal is dismissed.