dismissed L-1A Case: Electronics Import/Distribution

identifYingdata del~ted to
p~ve:nt clearly unwarranted
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PUBLIC COPY~
U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. AJOOO
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
'File: WAC-04~028':'50145 . Office: CALIFORNIA SERVICE CENTER Date: AUG 0 32006
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)(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.
1r'--tJ
'k0bert P. Wiemann, Chief
rv drninistrative Appeals Office
www.uscis.gov
WAC-04-028-50l45
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 AAO will dismiss the appeal. ,
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-l A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner is a corporation organized under thelaws of the state
of California and is engaged in the import and distribution of electronics. The petitioner claims that it is the
subsidiary of , located in Guangdong, China. 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 for the petitioner asserts that the director 's
conclusions were based on speculation, lacked analysis that the beneficiary has been acting in a primarily
managerial and executive capacity. However , the petitioner did not submit any additional evidence, cite any
legal authority for its assertions , or articulate how the evidence in the record supported its assertions.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section lOl(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity , or in a specialized knowledge capacity, for one
continuous year within three years .preceding the beneficiary's application 'for admission into the United
States. In addition , the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same , employer or a subsidiary or affiliate thereof in a managerial, executive , or
specialized knowledge capacity.
The regulation at 8 C .F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the '
alien are qualifying organizations as defined in paragraph (l)(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 pet ition.
(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
WAC-04-028-50 145
Page 3
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(1)(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 (1)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defmed m
paragraph (1)(1)(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 staffmg 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 management or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The first 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. § 1101(a)(44)(A), defmes 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
WAC-04-028-50145
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(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.§ llOl(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 ofthe 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 the initial petition, the petitioner described the beneficiary'sjob duties as follows:
[The beneficiary] has absolute and discretionary authority and control of the entire domestic
and international business operations as well as the authority to hire and fire supervisory
personnel. He was tasked to direct and coordinate the overall business operations; prepare,
plan and supervise day-to-day business and sales operations of the subsidiary; render work
instructions and. assignments to subordinates; participate in the management of personnel
matters including hiring and firing of employees of the subsidiary; prepare periodic sales
reports showing sales volume and potential sales, report to the parent company regarding the
business operations and other related matters in a timely fashion.
On January 13, 2004, the director requested additional evidence. Specifically, the director requested evidence
of a qualifying relationship, evidence that the beneficiary would be acting in an executive or managerial
capacity, including a list of employees and their duties, an organizational chart, a payroll summary, Forms
DE-6 quarterly wage reports, as well as evidence of doing business such as invoices and bills of lading.
In response, the petitioner submitted an organizational chart, list of employees, wage reports, payroll
summaries and wage tax documentation, invoices, bills of lading and packing lists.
On July 9, 2004, the director denied the petition. The director determined that the petitioner had not
established the beneficiary would be employed primarily in a managerial or executive capacity.
On appeal, counsel for the petitioner asserts that the director failed acknowledge the facts of the case and that
the petitioner established eligibilit~.
. WAC-04-028-50145
PageS
Upon review, counsel's assertions are not persuasive. When examining the executive or managerialcapacity
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. 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.
Onappeal counsel for petitioner states that the director's decision did not properly regard what it considers to
be facts. However, upon review of the record the director's exercise of discretion was proper because the
evidence submitted does not support that the petitioner's assertions rise above mere characterization. The
AAO would note that the petitioner has the burden of establishing that the beneficiary was actually employed
primarily in a executive capacity through the submission of probative documentary evidence; merely alleging
such is not sufficient. 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
not persuasive to argue that a director must cite authority for a proper exercise of discretion. The AAO would
note that it is the unsupported statements of counsel on appeal or in a motion which are not evidence and
which are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984);
Matter of Ramirez-Sanchez, 17 I&N Dec ..503 (BIA 1980). The petitioner bears the burden of establishing
eligibility in these proceedings, and that burden has not been met.
The evidence in the record does not support that the beneficiary is actually employed in an executive capacity.
As indicated by the director the salaries listed for the employees indicate that they are not receiving a full time.
salary, thus undermining any assertion. that they are operating in a supervisory, managerial or professional
capacity. It is well within the director's discretion to make a reasonable inference that $10,000 in annual
salary is not indicative of a full time employee, much less a managerial, supervisory or professional
employee. The petitioner has the burden establishing eligibility and in this case the evidence submitted by the
petitioner to support its assertions is not persuasive. 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. In
this case the petitioner has asserted that the beneficiary is an executive. One element of an executive capacity
~ .
is directing the management of the organization.. Thus the record must indicate that the subordinate
employees are supervisory, professional or managerial. As stated above, mere assertions, such as position
titles and artificially inflated organizational tiers are not sufficient.
Counsel for petitioner repeatedly asserts that the duties listed for the beneficiary and the other employees
establish eligibility, however, there is no evidence in the record that these are the actual duties of the
beneficiaries and the employees listed. The record does not contain evidence of personnel actions, policy or
goal setting, no evidence of clientele accumulation, no evidence of revenue generating contracts, reports to
management or coordination of inventory or any other documentary evidence which might normally be
generated in the normal course of business operations. The petitioner did not submit any evidence to
WAC-04-028-50 145
Page 6
demonstrate that its assertions were more than mere characterizations. The petitioner submitted a summary of
the wages for each of the employees, but in response to the director's RFE submitted W-2 wage forms that
contradict these assertions. See IRS Forms W-2, attached hereto as petitioner's response to RFE exhibit;
contra Employee summary, attached hereto as petitioner's initial exhibit. Without corroborating evidence
such as work product for these employees the petitioner's assertions are not persuasive..
The record is not persuasiye in demonstrating that the beneficiary has been or will be employed in a primarily
managerial or executive capacity. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. Furthermore, 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 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 is
not sufficiently operational after one year, 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.
Accordingly, the petitioner has not established that the beneficiary has been or will be employed in a
primarily or managerial capacity, as required by 8 C.F.R. § 214.2(1)(3).
The second issue in this proceeding is whether the petitioner has been conducting business for the prior year.
While not directly addressed by the director, the minimal documentation of the petitioner's business
operations raises the issue of whether the petitioner is a qualifying organization doing business in the United
States. 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(l)(I)(ii).
In this case the petitioner has admitted that the president of the organization was not present for four months
during the initial visa period. The petitioner submitted copies of invoices and bills of lading, but upon
inspection these invoices are almost exclusively dated for the month of March, 2004. This date is subsequent
to the period for which eligibility must be established. The fact that they are all for a period after the filing of
the petition renders them irrelevant to demonstrating eligibility at the time of filing. 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 of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Thus, it is not evident from the record that the petitioner has been conducting business. For this additional
reason the petition will be 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. UnitedStates, 229 F. Supp. 2d t025, 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 ona de novo basis).
.WAC-04-028-50145
Page 7
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 and the petition hereby denied.