dismissed L-1A Case: Electrical Equipment

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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 06 010 53140 Office: TEXAS SERVICE CENTER Date: AOO 0:) 1rXJ1
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)(l5)(L)
IN BEHALF OF PETITIONER:
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.
_.. .__._'~~
;~be~ann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 010 53140
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 extend the employment of its general manager
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 limited liability company organized
under the laws of the State of Florida and is allegedly engaged in the business of selling and installing
electrical equipment. 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, counsel to the petitioner asserts that the beneficiary's
duties are primarily those of a function manager. 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 temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies 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.
SRC 06 01053140
Page 3
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
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) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The 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 101(a)(44)(A) of the Act, 8 U.S.C. § llOl(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
SRC 06 010 53140
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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 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 asserts that the beneficiary manages an essential
function of the organization. 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 claiming that the beneficiary will be employed either as a manager or an executive and
will consider both classifications.
The petitioner described the beneficiary's job duties in the initial petition as "[s]ales, designs, and solutions in
electric and solar energy." The petitioner also attached an organizational chart which shows the beneficiary at
the top of the organization supervising six subordinate employees. The chart, however, does not specify
whether the subordinate positions identified in the chart are currently filled by employees or whether these are
vacant positions. Additionally, counsel provided a letter dated October 11, 2005 indicating that, although the
initial "new office" was approved from November 1, 2004 until November 1, 2005, the beneficiary did not
enter the United States to open the instant "new office" until August 2005, over nine months after the
approval of the "new office" petition. Counsel explained that the beneficiary needed to remain in his position
with the foreign employer in Ecuador due to an ongoing project. The business records and the petitioner's
2004 Form 1120 confirm that the petitioner was not engaged in any measurable business activity before the
arrival of the beneficiary in August 2005.
On October 26, 2005, the director requested additional evidence. The director requested, inter alia, a detailed
organizational chart for the petitioner which includes position descriptions and names of employees as well as
a copy of the petitioner's quarterly tax returns.
In response, the petitioner provided a revised organizational chart revealing that the petitioner employs the
beneficiary and one secretary who began working for the petitioner on September 19, 2005. The remaining
positions described in the organizational chart are vacant. The petitioner also provided quarterly wage reports
revealing that the secretary is only employee who has ever received compensation from the petitioner. As of
September 30, 2005, she had been paid a total of $250.00.
The petitioner also provided a job description for the beneficiary, as follows:
SRC 0601053140
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The first 6 months [he] will be in charge of selecting and hiring personnel required to perform
the necessary activities.
Assume the responsibility of the office operation and profitability, including sales, sales
growth, budgeting, gross margins, operating expenses, safety, customer service, inventory,
equipment.
Duties also include, contacts with firms engaged in the commercialization of solar energy
generation equipment and supplies, factories of electrogenic groups. Being those the lines
intented [sic] for growth in Ecuador, as a response to the requirements expressed by one of
[the foreign entity's] main clients in Ecuador.
On December 2, 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, counsel to the petitioner asserts that the beneficiary's duties are primarily those of a function
manager. Counsel also attempts to add duties to the beneficiary's previously submitted job description.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
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 is primarily 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
primarily in a "managerial" capacity. In support of its petition, the petitioner has vaguely described the
beneficiary as being engaged in "sales, designs, and solutions in electric and solar energy" and being
responsible for "office operation." The record indicates that he manages one secretary who was hired less
than one month before the instant petition was filed. However, acting as a first-line supervisor of a non­
professional clerical employee is not a managerial duty. A managerial employee must have authority over
day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised
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employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. 593,604 (Comm. 1988).1
Likewise, designing and selling the petitioner's proposed products and/or services constitutes the performance
of tasks necessary to produce a product or to provide a service which do not rise to the level of managerial
duties. As it has not been established that a subordinate staff exists which would relieve the beneficiary of
the need to perform the tasks inherent to selling and designing the petitioner's products, it must be concluded
that the beneficiary will be performing these tasks. The fact that the petitioner has given the beneficiary a
managerial title or that he is the sole supervisory employee does not establish that the beneficiary will actually
perform managerial duties. 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 ofChurch Scientology International, 19 I&N Dec. at 604.
Overall, the petitioner has revealed so little about what the beneficiary will do on a day-to-day basis other
than manage one clerical employee and design and sell the petitioner's products that it has not been
established that the beneficiary will primarily be engaged in performing managerial 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
On appeal, counsel to the petitioner attempts to "list and clarify" the beneficiary's "managerial activities" and
asserts that the beneficiary manages an essential function of the organization? However, the petitioner has
IThe petitioner has not established that the beneficiary will manage a professional employee. In evaluating
whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinate
position requires 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
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). As the petitioner has not revealed the educational background
or skill level of the subordinate employee, it has not been established that she is a professional employee.
2The additional job duties listed by counsel for the first time on appeal will not be considered by the AAO. A
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to CIS
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Moreover, the director
specifically requested employee position descriptions in the Request for Evidence. The petitioner provided a
response. The petitioner cannot, for the first time on appeal, materially supplement this job description when
previously requested and given the opportunity to do so. The AAO will not consider this evidence for any
SRC 06 01053140
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not established that the beneficiary manages an essential function. 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 manages an essential function. 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. Also, as explained above, the record establishes that the
beneficiary will be performing the tasks related to the function and will be acting as a first-line manager of a
non-professional clerical employee. Absent a clear and credible description of the time spent by the
beneficiary performing managerial duties, the AAO cannot determine what proportion of his duties would be
managerial, if any, nor can it deduce whether the beneficiary will be primarily performing the 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. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor and is performing non-qualifying tasks related to selling and designing the petitioner's product.
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 approving a visa for a multinational manager or executive (see §
purpose. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 (BIA
1988). The appeal will be adjudicated based on the record of proceeding before the director.
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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). 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) or (B) of the Act. As discussed above, the petitioner has not
established this essential element of eligibility.
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 not established that it was "doing business" during its
first year in operation as required by 8 C.F.R. § 214.2(l)(l4)(ii)(B). The petitioner's original "new office"
petition was approved on November 1, 2004. However, as explained in the letter dated October 11,2005, the
petitioner did not commence any business activity until August 2005, approximately 9 months after the
approval of the "new office" petition. Counsel explained that the beneficiary needed to remain in his position
with the foreign employer in Ecuador due to an ongoing project. The regulations, however, do not provide
for any exceptions to this requirement. Moreover, the record is devoid of any evidence of regular, systematic,
and continuous business activity since the beneficiary arrived in the United States. Therefore, the petitioner
failed to establish that the petitioner has been doing business in the United States as required by 8 C.F.R. §
214.2(l)(14)(ii)(B), 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 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.