dismissed L-1A Case: Electronics

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PUBLICCOyr
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 04 12450269 Office: CALIFORNIA SERVICE CENTER Date: SEP 18 2007
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)(15)(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.
~(JJ-
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 124 50269
Page 2
DISCUSSION: The Director, California 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 seeks to extend the temporary employment of the beneficiary as its president in the United States· as
an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a corporation organized in the state of
Delaware, claims to be engaged in electronics sales and distribution. It also claims to be the affiliate of Triangle
Research International, Pte. Ltd., an electronics manufacturer in Singapore. The beneficiary was initially granted
a one-year period of stay to open an new office, which was subsequently extended for an additional two years.
The petitioner now seeks to extend the beneficiary's stay for another two years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed in the United States in a primarily managerial or executive capacity. On appeal, counsel for the
petitioner asserts that there has been no material change in the circumstances surrounding the petitioner's
operations and therefore, the extension request should have been approved. In support of this contention, counsel
submits a brief and additional evidence in support of the beneficiary's claimed eligibility.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria outlined
in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the beneficiary in
a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year
within three years preceding the beneficiary's application for admission into the United States. In addition, the
beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Fonn 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 him/her to perfonn the intended services in the United
States; however, the work in the United States need not be the same work which the alien
perfonned abroad.
WAC 04 124 50269
Page 3
The 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. § llOl(a)(44)(A), defines the tenn "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
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.
In a letter dated March 18,2004, the petitioner provided the following description of the beneficiary's duties:
[The beneficiary] will continue to exercise overall authority for directing our entire company's
operations, formulating and implementing all senior-level administrative, marketing and sales, and
corporate policies and procedures, detennining corporate goals, determining and establishing
budgets, and seeking out funding and financing as required to meet the company's financing goals.
[The beneficiary] will recruit, train, manage and supervise sales, technical support, and project
WAC 0412450269
Page 4
engineers, and oversee sales, customization, and delivery activities to ensure that customers' needs
are met. [The beneficiary] will oversee the development of business strategies to meet sales and
marketing objectives, including negotiating with our most important customers, and will have
ultimate managerial authority for directing the work of all employees, which currently includes one
design engineer, one sales executive, and one marketing executive. [The beneficiary] is in charge
of making all personnel decisions regarding hiring, firing, assignments, promotions and discipline.
In this senior executive capacity, [the beneficiary] will continue to exercise the highest level of
discretion in making all management-level decisions affecting [the petitioner's] operations.
On March 31, 2004, the director issued a request for additional evidence. Specifically, the director requested an
organizational chart for the U.S. entity, demonstrating the name and position titles of all employees of the
petitioner, including a brief description of their duties. In addition, a more detailed description of the
beneficiary's duties was requested, as well as documentation of wages paid to all listed employees in the form of
payroll summaries and quarterly wage reports.
In a response dated April 26, 2004, the 'petitioner, through counsel, addressed the director's queries. With regard
to the beneficiary's duties, the petitioner submitted an expanded overview of the beneficiary's duties in a letter
dated April 19, 2004. In this letter, the petitioner restated the initial overview of his duties, and further
supplemented the record by stating that the beneficiary spends approximately 20 percent of his time carrying out
operations management duties; 40 percent of his time managing the petitioner's marketing and promotional
activities; 20 percent of his time managing and supervising sales activities; and 20 percent of his time managing
product planning and customization.
The petitioner also submitted an organizational chart, indicating that the beneficiary, as president, oversaw three
employees; namely:
Sales Executive
Design Engineer
Marketing Executive
It also stated that an Application Engineer would be hired sometime in 2004.
On May 6, 2004, 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 that the description of duties provided was generic and generalized, and
did not sufficiently state the exact nature of the beneficiary's responsibilities. In addition, the director noted that
many of the generalized tasks identified in the descriptions were related to sales and marketing, tasks not
traditionally deemed managerial or executive in nature.
On appeal, the petitioner contends that the director erred by not giving deference to prior L-l A approvals. The
petitioner asserts that there has been no material change in the facts or circumstances and cites a U.S. Citizenship
& Immigration Services (USCIS) memorandum in support of its claim.
WAC 0412450269
Page 5
The AAO, upon review of the record of proceeding, concurs with the director's finding. While the beneficiary is
the intended president 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. §
214.2(l)(3)(ii). In this case, the description of duties provided in the March 18, 2004 letter of support, as well as
those listed in the response to the request for evidence, failed to sufficiently document what proportion of the
beneficiary's duties would be managerial functions and what proportion would be non-managerial. The AAO
notes that the petitioner divided the beneficiary's duties into four main categories, namely: (1) operations
management; (2) marketing and promotional activities; (3) sales activities; and (4) product planning and
customization. However, the list is vague, and although the petitioner supplemented each area with a brief
overview of the beneficiary's tasks, duties such as "managing daily operations," "seeking out and appointing new
distributors," and serving as liaison with distributors and resellers" do not constitute duties traditionally held to be
managerial or executive in nature. Although the petitioner notes the percentage of time the beneficiary devotes to
each specific area, it fails to quantify the exact amount of time the beneficiary spends on each particular duty
identified within these areas. Since the description of the beneficiary's duties includes both managerial and
administrative or operational tasks, this omission is important, for the AAO cannot determine what an average
day or week consists of for the beneficiary.
Furthermore, the general overview of duties provided in both the initial letter of support and the response to the
request for evidence seems to merely paraphrase key areas from the regulatory definitions of managerial and
executive capacity. See §§ 101(a)(44)(A) & (B) of the Act. Based on the current record, the AAO is unable to
determine whether the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the
beneficiary primarily performs non-managerial administrative or operational duties. Although specifically
requested by the director, the petitioner's description of the beneficiary's job duties does not establish what
proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. See
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Despite the fact that the petitioner did provide a
breakdown of the general areas to which the beneficiary devoted his time, these general areas encompass many
non-qualifying tasks including sales and marketing related obligations. 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 (B.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). Without a more detailed discussion of the specifics
surrounding the nature of the beneficiary's duties, it is impossible to conclude whether the beneficiary is
employed in a primarily managerial or executive capacity. 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 answer a critical question in this case: What does the beneficiary
primarily do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Id. at
1108.
Based on the description provided, it appears that the beneficiary's duties primarily include sales and marketing
tasks, such as acting as a liaison between the petitioner and distributors. Generally, the performance of marketing
and sales-related tasks is not considered to fit the parameters of managerial or executive capacity. Furthermore,
since the organizational chart identifies a marketing executive and a sales executive, it is unclear why such a high
percentage of the beneficiary's time is devoted to performing customer-related services in these areas. An
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not
_____ _____1
WAC 04 124 50269
Page 6
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 Int'l., 19 I&N Dec. 593,604 (Corom. 1988).
The petitioner also indicates in the record that the beneficiary's job duties include overseeing the petitioner's three
other employees. Although the beneficiary is not required to supervise personnel, if it is claimed that her duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
The petitioner did not provide the level of education required to perform the duties of its marketing and sales
executives and its design engineer. While it is noted that the organizational chart states that the design engineer
has a RS.E.E. and the marketing executive has a RA.IM.A., there is no verification that such degrees are actually
a prerequisite to performing the duties of these positions. The AAO must focus on the level of education required
by the position, rather than the degree held by the 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. More importantly, however, is the fact that the petitioner has
failed to adequately describe the position duties and obligations of the design engineer and the marketing
executive, and instead seems to conclude that based on the position titles of these employees, they are thus
professional, managerial, or supervisory. Without more specific infonnation with regard to the exact nature of
these positions, as well as any prerequisite degrees required to adequately perform the duties of these positions,
the AAO is unable to determine the level of responsibility bestowed on these persons. Thus, the petitioner has not
established that these employees require a bachelor's degree to perfonn their duties, such that they could be
classified as professionals. Nor has the petitioner shown that any of these employees supervise subordinate staff
members or manage a clearly defined department or function of the petitioner, such that they could be classified
as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's subordinate employees are
supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) ofthe Act.
With regard to the organizational structure of the petitioner, counsel correctly observes that a company's size
alone, without taking into account the reasonable needs of the organization, may not be the determining factor in
denying a visa to a multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C.
§ 1101(a)(44)(C). However, it is appropriate for Citizenship and Immigration Services (CIS) to consider the size
of the petitioning company in conjunction with other relevant factors, such as a company's small personnel size,
the absence of employees who would perfonn 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 size of a company may be especially relevant when CIS notes
discrepancies in the record and fails to believe that the facts asserted are true. Id.
As touched upon briefly above, the petitioner provides no explanation as to why a majority of the beneficiary's
time is devoted to sales and marketing tasks, when two of his three subordinate employees are allegedly
"executives" in those departments. Furthermore, no discussion of the manner in which administrative and
operational tasks are carried out is provided. The AAO notes that the beneficiary is "in charge" of personnel,
purchasing, administrative services and finance, but does not supervise any lower-level employees who perform
duties related to these functions. Thus, it is reasonable to conclude that the beneficiary is perfonning, rather than
WAC 04 124 50269
Page 7
managing, these non-qualifying activities, and it is questionable whether all of the administrative, financial,
personnel and purchasing tasks require only 20% of the beneficiary's time.
In the present matter, although the petitioner was established in 2000, the regulations provide strict evidentiary
requirements for the extension of a "new office" petition and require CIS to examine the organizational structure
and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The regulation at 8 C.F.R. §
214.2(1)(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 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 petitioner has not demonstrated that it has reached the point that it can
employ the beneficiary in a predominantly managerial or executive position. The fact that the company employs
three subordinate employee after four years, but still does not have a dedicated administrative assistant or office
manager raises questions with regard to the validity of the job descriptions of all employees.
Counsel on appeal asserts that CIS approved other petitions that had been previously filed on behalf of the
beneficiary, and that no material changes have occurred since their approval. In support of this premise, counsel
relies on an CIS interoffice memorandum by Associate Director for Operations, entitled "The
Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination
Regarding Eligibility for Extension of Petition Validity." Specifically, counsel focuses on the policy set forth in
the memorandum, which states that a prior determination, involving the same parties and the same underlying
facts, should afford deference to a petition when requesting an extension of that same petition. See Memo. from
Dir., Office of Operations, Citizenship and Immigration Serv., to all Servo Ctr. Dir. et
aI., The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent
Determination Regarding Eligibility for Extension ofPetition Validity, I (April 23, 2004).
The director's decision does not indicate whether he reviewed the prior approvals of the other nonimmigrant
petitions. If the previous nonimmigrant petitions were approved based on the same unsupported assertions that
are contained in the current record, the approval would constitute material and gross error on the part of the
director. The AAO is not required to approve applications or petitions where eligibility has not been
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church
Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to suggest that CIS or any
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084,
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center.
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afJ'd, 248 F.3d 1139 (5th Cir. 2001), cert.
denied, 122 S.Ct. 51 (2001).
Furthermore, it must be emphasized that that each petition filing is a separate proceeding with a separate record.
See 8 C.F.R. § !03.8(d). In making a determination of statutory eligibility, CIS is limited to the information
WAC 04 124 50269
Page 8
contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(l6)(ii). As the director properly
reviewed the record before him, it was impracticable for the director to provide the petitioner with an explanation
as to why the prior approvals were erroneous, as counsel suggests. The prior approvals do not preclude CIS from
denying an extension of the original visa based on a reassessment of the petitioner's qualifications. Texas A&M
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Due to the lack of required evidence
of eligibility in the present record, the AAO finds that the director was justified in departing from the previous
approvals by denying the instant petition.
The petitioner has failed to establish that the beneficiary will be employed in the United States in a primarily
managerial or executive capacity. For this reason, the petition may not be approved.
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.