dismissed L-1A Case: Electronic And Security Equipment

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington , DC 20529
U.S. Citizenship
and Immigration
Services
Office: VERMONT SERVICE CENTERFile:
PUBLIC COpy
EAC 07 040 51043
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OCT 1 7 1001
Date:
INRE: 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:
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.~~f:.Robert P. Wiemann , Chief
Administrative Appeals Office
www.uscis.gov
EAC 07 04051043
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 is engaged in the sale of electronic and security equipment and seeks to extend the employment
of its chief executive officer in the United States as an intracompany transferee pursuant to section
101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner, an
Arizona corporation, claims to be the subsidiary of Neza Electronica, located in Mexico City, Mexico. The
beneficiary was initially granted an eleven-month period of stay to open a new office in the United States, and
the petitioner now seeks to extend the beneficiary's stay for an additional three years.
The director denied the petition, finding that the petitioner had not demonstrated that the beneficiary would be
employed in the United States in a primarily managerial or executive capacity.'
On appeal, the petitioner asserts that the beneficiary was in fact acting in a primarily executive capacity, and
submits a brief and additional evidence in support of this contention.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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.
1 The AAO notes that the director incorrectly concluded that the petitioner was established in September
2006, and thus was to be treated as a new office for purposes of review, pursuant to 8 C.F.R. § 214.2(1)(3)(v).
The corporate documentation in the record indicates that the petitioner was incorporated in September 2005,
and that the beneficiary was granted an eleven-month period in L-l classification to open a new office in
January 2006. Consequently, since the petitioner had been operational for nearly sixteen months at the time
of filing, the AAO will treat this petition as a new office extension pursuant to 8 C.F.R. § 214.2(1)(l4)(ii).
EAC 07 040 51043
Page 3
(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 regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined In
paragraph (l)(l)(ii)(H) of this section for the previous year;
(C) 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.
This primary issue in this 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. § 1101(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 ofthe 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,
EAC 07 04051043
Page 4
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
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 November 29, 2006. In a letter of support dated November 21, 2006,
the petitioner alleged that the beneficiary is employed in the United States in a primarily executive capacity.
The petitioner also claimed that the beneficiary was required to frequently travel to Mexico City.
Counsel provided the following overview of the beneficiary's duties:
As Chief Executive officer he establishes goals and business policies. He manages the
company's executive operations and explores investment opportunities for [the petitioner].
[The beneficiary] will dedicate approximately 15% of his time performing these duties.
He develops the company's marketing campaigns. [The beneficiary] dedicates around 10%
of his time to performing this duty.
He reviews the activity reports and financial statements in order to increase productivity. He
spends approximately 15% of his time performing this function.
He is the hiring authority at the company and evaluates personnel performance. He dedicates
5% of his time to this duty.
[The beneficiary] performs exclusively executive duties in the Company. He is a senior
level executive; there is no one supervising his job.
EAC 07 040 51043
Page 5
The director found this evidence insufficient to warrant approval of the petition and consequently issued a
request for evidence on December 6, 2006. The director requested a definitive statement describing the
management and personnel structure of the U.S. entity, including the number of subordinate employees under
the beneficiary's supervision as well as their job titles and duties. The director also requested a description of
the executive and technical skills required to perform the duties of the beneficiary, as well as a statement
explaining who runs the petitioner in the beneficiary's absence.
On December 20, 2006, the petitioner, through counsel, provided a brief response which addressed the
director's requests. With regard to the beneficiary's subordinate employees, the petitioner indicated that he
supervised three persons:_ vice president of operations; who is in charge of
the sales department; an~ho also served as vice president of operations. The petitioner
explained that _ ran the petitioner's operations in the absence of the beneficiary, and further
claimed that the beneficiary's wife would also be capable of running the business once she obtained an
employment card.
With regard to the beneficiary's executive and technical skills, the petitioner provided the following brief
statement:
[The beneficiary] is the Company's Chief Executive officer. He directs the management of
the organization in the US. He establishes goals and policies of [the petitioner] and he is
also the company's hiring authority. Thus, he is employed in an executive capacity. He
exercises discretionary decision-making and he receives only general supervision from the
Mexico City parent company.
Emphasis in original.
On January 8, 2007, the director denied the petition. The director determined that the evidence in the record
did not establish that the beneficiary would be employed in a primarily managerial or executive capacity
while in the United States. Specifically, the director concluded that given the small number of personnel, it
appeared that the beneficiary would be acting as a first-line supervisor as opposed to a manager or executive.
On appeal, the petitioner alleges that the director's decision was erroneous, and contends that he is in fact
working as an executive. The petitioner provides evidence on appeal that the beneficiary is a certified public
accountant, and restates that the beneficiary is clearly operating as an executive. The petitioner also
contended that the director's decision was inappropriately based on the number of employees to be supervised
by the beneficiary, and that as a result, the director erroneously concluded that the beneficiary was acting as a
first-line supervisor.
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon
review of the beneficiary's stated duties and the fact that his subordinates are not professional employees, the
petitioner has failed to establish that it will employ the beneficiary in a capacity that is primarily managerial
or executive in nature. In addition, the AAO notes that the description of duties provided, both in the initial
letter of support and in response to the request for evidence, was too vague to ascertain whether the
EAC 07 040 51043
Page 6
beneficiary will be acting in a primarily managerial or executive capacity. While the beneficiary is the
intended chief executive officer of the company, there is insufficient evidence to show that he will be acting
primarily in a managerial or executive capacity during his U.S. employment.
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). In this case, the petitioner vaguely
described the beneficiary's duties but failed to provide a specific overview of how he will refrain from
performing non-qualifying tasks. Despite the director's specific request for a definitive overview of the
executive and technical skills required to perform the duties associated with the beneficiary's position, the
petitioner elected to submit a description very similar to the initial description of duties provided in the initial
petition. The AAO notes that the description of duties submitted in response to the request for evidence
merely quotes the regulatory definition of executive capacity, and provides no insight on the nature of the
beneficiary's daily tasks or his day-to-day duties. Counsel continues this same line of reasoning on appeal,
and instead of provided more details regarding the nature of the beneficiary's role in the petitioning
enterprise, counsel merely concludes that "We believe that the record proves that [the beneficiary] will be
employed in an executive capacity and not just as a supervisor." Conclusory assertions regarding the
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,
1108 (E.D.N.Y. 1989), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 WL
188942 at *5 (S.D.N.Y.).
In this matter, counsel specifically limits his arguments to the executive capacity of the beneficiary.
However, it was still claimed that the beneficiary is the petitioner's sole hiring authority and thus a major part
of the beneficiary's duties include overseeing staff. Although the beneficiary is not required to supervise
personnel, if it is claimed that his managerial duties involve supervising employees, the petitioner must
establish that the subordinate employees are supervisory, professional, or managerial for the purpose of
determining whether he meets the alternative requirement for a managerial capacity position. See §
101(a)(44)(A)(ii) of the Act.
In 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
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).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
EAC 07 040 51043
Page 7
actually necessary, for example, to perform the duties of the two vice presidents of operations and the sales
person. Additionally, no evidence pertaining to the educational credentials has been submitted, and on
appeal, counsel acknowledges that these three subordinate employees are not in fact professionals.
Counsel also provides evidence on appeal that the beneficiary is a certified public accountant, and thus, as a
professional, is employed in an executive capacity with the petitioner.' While these credentials are certainly
impressive, the petitioner made no assertion prior to appeal that the beneficiary would be performing any
accounting services during his tenure in the United States. The mere possession of a bachelor's or master's
degree does not automatically confer managerial or executive status upon a beneficiary; the totality of the
organizational hierarchy and the beneficiary's role therein must be examined when determining if a
beneficiary is primarily engaged in managerial or executive duties.
Most importantly, the petitioner has provided little or no evidence to corroborate its claims. Although three
subordinate employees are allegedly on the petitioner's payroll, no evidence of wages paid to these persons
has been submitted. Furthermore, no specific illustrations of the beneficiary's day-to-day duties has been
provided, and the description of duties repeatedly furnished by counsel merely cites the regulatory definition
of executive capacity. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Moreover, without documentary evidence to support the claims, the assertions of counsel will not satisfy the
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
A managerial or executive 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. See Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, there is no evidence
that the beneficiary oversees a staff of professional employees. In addition, there is no documentary evidence
to support a finding that such subordinates are actually employed by the petitioner. As such, the AAO
concurs with the director's finding that the petitioner has failed to demonstrate that the beneficiary will be
employed in a primarily managerial or executive capacity. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. § 214.2(l)(l4)(ii)
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension
petition. Upon review, the petitioner has not submitted evidence that the United States entity has been doing
business for the previous year as defined in 8 C.F.R. § 214.2(l)(l)(ii)(H). While the director incorrectly
concluded that the petitioner had only been in operation since September of 2006 and thus was afforded
2 It is noted that copies of educational credentials that appear to pertain to the beneficiary accompany the
appeal brief. However, these documents are not translated. 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.
EAC 07 040 51043
Page 8
consideration under new office provisions, the record indicates that the petitioner was established in
September 2005. The petitioner, therefore, is required to demonstrate that it has been doing business
continually for the year preceding the filing of the instant extension.
The petitioner submitted a number of invoices and documents suggesting that it has been selling its goods on
a regular basis. However, the earliest invoice documenting the sale of the petitioner's goods dates back to
September 2006. Since the petition was approved in January of that year, the petitioner is expected to submit
evidence that it has been doing business since the date of the approval of the initial petition. In the instant
case, there is no evidence that the petitioner was doing business from January through September of 2006, as
required by the regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii)(B). Additionally, the AAO notes that the record
contains minimal evidence of the financial status of the U.S. entity as required by the regulation at 8 C.F.R. §
2l4.2(l)(l4)(ii)(E). For these additional reasons, the petition may not be approved.
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), ajJ'd. 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).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
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.