dismissed L-1A Case: Event Production

identifyingdatadeletedto
preventclearlyunwarranted
mvasionofpersonalprivacy
PUBLIC copy
U.s. Department of Homeland Security
20 Massachusetts. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 126 51805 Office: TEXAS SERVICE CENTER Date: JLJN 04 2607
INRE: Petitioner:
Beneficiary:
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)(15)(L)
ON 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.
'/';'~-- ." .
<: . ~ ,
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 12651805
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 appea1.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-lA
nonimmigrant 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, a Texas corporation , states that it provides technical
direction for concerts , shows, and events, and other services. The petitioner claims that it is the subsidiary of
Harvest Advertising and Marketing , located in Mumbai , India. The petitioner has employed the beneficiary
in L-IA status since March 19,2002 and now seeks to extend his status for three additional years .
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed 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
decision lacks legal and factual support, and applies an inappropriate standard of proof that goes beyond the
required preponderance of the evidence standard. Counsel contends that the director further placed undue
emphasis on the size of the staffing of the U.S. company as the basis for the denial. Counsel asserts that the
beneficiary is employed in a primarily managerial or executive capacity and relies upon contracted staff as
necessary to relieve him from providing the services of the business. Counsel submits a brief in support of the
appeal.
To establish eligibility for the L-l 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 (l)(l) (ii)(G) of this section.
(ii) E vidence 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 .
SRC 06 126 51805
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 sole issue addressed by the director is whether the petitioner established that 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 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.
SRC 06 12651805
Page 4
The petitioner filed the nonimmigrant petition on March 15, 2006, noting its intention to extend the
beneficiary's employment as president of the three-person u.s. company.
In an attached statement, the petitioner described the beneficiary's proposed duties as follows:
• Confer with MIS Expressions Unlimited, the parent company in Mumbai, India and
develop long-range goals and objectives of [the petitioner] in Houston, Texas, U.S.A.
[10%]
• Direct and coordinate activities of the organization and formulate and administer
company policies. [10%]
• Oversee the entire management, delivery and business development of the "technical
direction" services provided by the parent and subsidiary corporations. [10%]
• Direct and coordinate activities of managers, employees and contractors in the
production, operations, purchasing and marketing areas for which responsibility is
delegated to further attainment of goals and objectives. [10%]
• Oversee the entire production of South Asian concerts. Manage and provide the entire
delivery of technical services by focusing on the areas of lighting, sound, stage
management and direction, security, use of proper music and sound equipment,
organizational management, budgeting, market research, allocation of personnel and
training. [5%]
• Provide high-level support to local promoters for South Asian concerts held in the
United States. [5%]
• Manage the overall coordination of the technical requirements between the promoters
and the equipment suppliers or companies. [5%]
• Negotiate contracts for services with equipment suppliers who provide the stage, lights
and sound supports for the concerts. [5%]
• Negotiate contracts with artistes in South Asia to be their Techncal Advisors for their
tours in the United States. [5%]
• Promote concerts of select artists (e.g. Pankaj Udhas-renowned Ghazal singer) in the
United States and Canada. [5%]
• Oversee the providing of advertising and marketing consultancy services to domestic
product manufacturers and service providers for the sale and distribution of their
products and services to the South Asian market in the United States. [5%]
• Dialogue with clients and customers to ascertain and define needs or problem areas and
determine scope of requirements. [5%]
• Determine solutions, such as installation of alternate methods and procedures, changes
in methods and practices, modification of machines or equipment, or redesign of
products or services. [5%]
• Advise clients and employees on alternate methods of solving needs or problem areas, or
recommend specific solutions. [5%]
• Review and analyze activities, costs, operations, and forecast data to determine progress
toward stated goals and objectives. [5%]
SRC 06 12651805
Page 5
• Review achievements with management and discuss required changes III goals or
objectives of the company. [5%]
The petitioner submitted an organizational chart for the U.S. company which identifies the beneficiary as
president, reporting to "international/local promoters" and supervising an office manager. The chart shows
that the beneficiary, through the office manager, supervises lighting companies, sound companies and staging
companies. The petitioner attached a description of the services these companies provide, and a list of
vendors used by the company. The petitioner submitted a copy of its Texas Form C-3, Employer's Quarterly
Report for the third and fourth quarters of 2005 which confirms the part-time employment of the individual
identified as the petitioner's office manager. The petitioner also submitted invoices from various vendors as
evidence of services provided by advertisers, sound, staging and lighting companies, and venues. The most
recent invoices were dated in 2004.
In addition to describing its technical direction and marketing consulting services, the petitioner submitted a
"Master Reseller Agreement" between the U.S. company and DBS Communications, Inc., in which the
petitioner agrees to "use its best efforts [to] sell DBS Services through and to Retail Stores" in the Houston
metropolitan area, provide training to retail stores, and provide customer information to DBS, in exchange for
commission payments. Appendix C to the agreement indicates that the beneficiary will be the manager of
these activities, during opening hours of 11:00 to 7:00, Monday through Saturday, and the petitioner
submitted a sales and use tax permit which is presumably related to the sales activities mentioned in the
reseller agreement. The AAO notes that the term of the agreement was for one year commencing in January
2003, but it is unclear whether the petitioner currently operates this business.
The director issued a request for evidence on April 19, 2006, in part, instructing the petitioner to submit: (1)
an organizational chart for the U.S. entity, including the names, job titles, job descriptions and educational
background for all employees; (2) a copy of the petitioner's state quarterly wage report and IRS Form 941,
Employer's Quarterly Federal Tax Return, for the first quarter of 2006; and a copy of the beneficiary's IRS
Form W-2, Wage and Tax Statement, for 2005. On July 11, 2006, the petitioner requested an additional 30
days to submit the requested evidence, noting that due to heavy monsoons in India, documents from the
foreign entity were unavailable. The director subsequently issued a notice of intent to deny requesting the
same items on July 26, 2006, allowing the petitioner 30 days to respond.
In a response dated August 24, 2006, counsel for the petitioner emphasized that the petitioner's business is
"intermittent and labor intensive," and relies on the use of independent contractors to participat~
concert events. The petitioner indicated ~beneficiary "directly deals with ~
_, who is the Executive Secretary. _ in tum liaises with different labor contract
workers which varies according to the event organized and the requirements of the organizers and sponsors."
Counsel noted that the petitioner organized nine concerts during 2005. In an accompanying letter, the
petitioner further explained the petitioner's staffing and business as follows:
When we give out contracts for any event or concert the equipment is charged separately and
the LABOR is charged separately. We end up paying CONTRACT LABOR for each event
that we undertake and therefore avoid the necessity of having full time employees.
SRC 06 12651805
Page 6
The petitioner submitted an organizational chart listing the events and concerts organized by the U.S.
company in 2005, and indicated the number of lighting, sound, video, and stage staff assigned to each event.
The petitioner also submitted the requested state and federal quarterly reports for 2006, which confirm the
ongoing employment of the office manager/executive secretary at a monthly salary of $500.
The director denied the petition on September 20, 2006, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director observed that the petitioner had not demonstrated employees working under the
beneficiary in a managerial or professional capacity, or staff to relieve the beneficiary from performing "non­
managerial or non-essential duties." The director found that the petitioner had not documented the
employment of subordinate personnel, and determined that the beneficiary would be engaged in the
performance of the various functions of the company, rather than managing such functions.
On appeal, counsel for the petitioner asserts that "the Service lacks legal and factual support for its Decision."
Counsel asserts that the director ignores the applicable standard of proof to be used in adjudicating
applications and petitions. Counsel notes that the definitions of "executive and manager" were liberalized by
the Immigration Act of 1990 (IMMACT90), and asserts that an individual who does not have supervisory
responsibilities but who manages or directs the management of a major function of the organization qualifies
as a manager. Counsel further states that the director erred by using the staffing of the company as the sole
basis for adjudication. Counsel cites several unpublished decisions in which the beneficiary was found to be
employed in a managerial capacity even when he or she did not directly supervise employees, or only
supervised independent contractors.
In addition, counsel asserts that the beneficiary is not required to supervise a large staff, or even any staff, in
order to qualify as an intracompany transferee in a managerial or executive capacity, noting that the AAO has
previously approved petitions for "essentially one-man operations." Counsel claims that all non-essential and
non-executive work is performed by contractors who work on a short-term basis, while the beneficiary
"exercises great executive and managerial control over the direction of the business by negotiating the deals
and making the choices he makes." Counsel emphasizes that "the company does well despite its lack of
employees" and the beneficiary is responsible for its success and exercises "plenty of managerial and
executive control."
Counsel's assertions are not persuasive. Upon review of the petition and the evidence, the petitioner has not
established that the beneficiary would be employed in a primarily managerial or executive capacity under the
extended petition. 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 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 show 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).
SRC 06 126 51805
Page 7
Here, while the AAO does not dispute that the beneficiary exercises authority over the U.S. company as its
sole full-time employee and is perhaps critical to the success of the company due to his professional
background, the record does not establish that he performs primarily managerial or executive duties as
contemplated by the statutory definitions.
The petitioner's description of the beneficiary's position, while lengthy, provides only a generic overview of
the beneficiary's duties. For example, statements such as "direct and coordinate activities of the organization,"
"formulate and administer company policies"; "oversee the entire management, delivery and business
development of the 'technical direction' services"; "manage the overall coordination of the technical
requirements"; "review and analyze activities , costs, operations"; and "review achievements with
management" are insufficient to convey an understanding of what the beneficiary does on a daily basis.
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).
Moreover, the beneficiary's responsibilities for meeting with clients and customers, promoting concerts,
contracting with equipment suppliers, advising clients, providing "high-level" support to local promoters,
meeting with clients and customers to ascertain their requirements, and determining solutions suggest that the
beneficiary is the individual marketing and selling the petitioner's services, as well as providing consulting
services. Although counsel emphasizes the beneficiary's responsibility for acquiring projects for the petitioner
to manage, acquiring clients and projects to manage is an operational task , necessary to establish and continue
the petitioner 's business. Similarly , the beneficiary's responsibility for determining clients' needs and
developing solutions or plans to ensure the successful performance of their events are operational tasks
intrinsic to providing the petitioner's event management consulting services and have therefore not been
shown to be managerial or executive in nature . 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 of Church Scientology Int'l, 19 I&N Dec. 593,
604 (Comm. 1988).
Finally, some of the beneficiary's duties suggest that he oversees staff who are not in fact employed by the
petitioning entity on a permanent or contract basis. For example, the petitioner states that the beneficiary
directs and coordinates the activities of "managers , employees and contractors in the production, operations ,
purchasing and marketing areas." While the AAO is satisfied that the petitioner utilizes contractors to
perform the technical aspects of staging concerts , the petitioner concedes that it does not employ any direct
managers or employees, and does not claim to have any personnel on its staff to perform operations,
purchasing or marketing tasks with respect to the petitioner's business. Similarly, the petitioner states that the
beneficiary "oversees" the provision of advertising and marketing consultancy services to domestic clients
seeking to sell their products and services to the South Asian market in the United States. Again , the
petitioner does not clarify exactly who conceptualizes and designs advertising and marketing services for the
company's clients, or who markets the petitioner's services in this regard , if not the beneficiary . Going on
SRC 06 12651805
Page 8
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings . Matter ofSoffici, 22 I&N Dec. 158 , 165 (Comm. 1998) (citing Matter of Treasure Craft
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Again, while the AAO is satisfied that the beneficiary is not performing the technical duties associated with
providing staging, lighting, audio and video production for the concert events undertaken by the petitioning
company, there are many other non-managerial functions to be performed in operating the petitioner's
business , including sales, marketing , day-to-day financial matters, provision of marketing and advertising
consulting services to clients , coordination and promotion of events , purchasing , booking of venues for
concerts , and making other arrangements for visiting performers and their accompanying staff, musicians, etc.
The coordination of all of these various functions is the basic purpose of the petitioning organization and
constitutes the main service it provides. Therefore , if the beneficiary is in fact personally performing all of
these duties , he is performing the duties required to provide the petitioner's services. The record simply does
not substantiate that the beneficiary has a support staff to assist him with the day-to-day administrative,
financial and other operational tasks of the company , which have not been shown to be managerial or
executive in nature. A review of the totality of the record indicates that the beneficiary himself is responsible
for essentially all functions associated with operating the business, many of which are not at the managerial or
executive level.
The petitioner in this matter has not provided a description of the beneficiary's duties sufficient to establish
the beneficiary's eligibility for this visa classification. Conclusory and unsubstantiated 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. at
1108, affd , 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5
(S.D.N.Y.). Although the petitioner provided a lengthy list of ambiguously worded duties and assigned a
percentage of time allocated to each duty , the duties are too vague and include non-qualifying tasks. The
AAO is unable to determine what proportion of the claimed managerial duties constitute the majority of the
beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or
operational duties. The petitioner's description of the beneficiary's job duties does not credibly or
meaningfully 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).
Counsel nevertheless claims that the beneficiary will be employed as both a manager and an executive under
the extended petition. The AAO notes that 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, 8 U.S .C. § 1101(a)(44)(B) . 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 managerial 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
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
SRC 06 12651805
Page 9
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id.
In this matter the petitioner has not demonstrated that the beneficiary will primarily direct the management or
establish the goals and policies of the organization. As of March 2006, the petitioner had not attained the
organizational complexity wherein hiring/firing personnel, discretionary decision-making, and setting
company goals and policies would constitute significant components of the beneficiary's duties performed on
a day-to-day basis. Instead the record shows that the beneficiary was focused on the necessity of establishing
the petitioner's business by providing the petitioner's market research, proposing that prospective clients use
its services, performing operational tasks to coordinate sponsored events, as well as carrying out the
administrative tasks of operating its office, and even directly providing business consulting services related to
the petitioner's marketing and advertising consulting business.
The petitioner has not provided evidence that the beneficiary performs or will perform primarily in a
managerial capacity. As the director determined, the record does not contain evidence that the beneficiary
manages a subordinate staff of employees who would relieve him from performing non-qualifying duties
associated with the day-to-day operation of the business. Again, other than the technical duties associated
with the staging, lighting, audio and video services required for specific concert events, the beneficiary
appears to be responsible for essentially all other administrative and operational tasks of the company, as well
as providing consulting services, and these duties have not been shown to be incidental to any managerial
duties he performs. While it appears that the beneficiary's spouse works for the company on a part-time basis
as an administrative or secretarial employee, the petitioner opted not to provide a description of the duties she
performs, although this information was requested by the director. Any failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
The record does not contain sufficient evidence to establish that the beneficiary will direct or manage the
petitioner's 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, 8 U.S.C.
§ 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. However, if a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a detailed
description of the duties to be performed that identifies the function with specificity, articulates the essential
nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to managing
the essential function. 8 C.F.R. § 2l4.2(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. Again, an employee who primarily performs the tasks necessary to produce a product
or to provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v.
I.N.S., 67 F.3d at 305. In this matter, the petitioner has not provided evidence that the beneficiary manages an
essential function.
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the
SRC 06 12651805
Page 10
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the
case of a function manager, where no subordinates are directly supervised, these other factors may include the
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure,
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision
of employees within the scope of the function managed, and the value of the budgets, products, or services
that the beneficiary manages. Even if the beneficiary does not directly supervise employees, it is the
petitioner's obligation to establish that someone other than the beneficiary performs the day-to-day non­
managerial tasks of the function managed. As discussed above, the petitioner has not met this burden.
The addition of the concept of a "function manager" by the Immigration Act of 1990 simply eliminates the
requirement that a beneficiary must directly supervise subordinate employees to establish managerial
capacity. Despite the changes made by the Immigration Act of 1990, the statute continues to require that an
individual "primarily" perform managerial or executive duties in order to qualify as a managerial or executive
employee under the Act. The word "primarily" is defined as "at first," "principally," or "chiefly." Webster's II
New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks
necessary to produce a product or to provide a service or other non-managerial, non-executive duties, that
individual cannot also "principally" or "chiefly" perform managerial or executive duties.
Moreover, federal courts continue to give deference to CIS's interpretation of the Immigration Act of 1990
and the concept of "function manager," especially when considering individuals who primarily conduct the
business of an organization or when the petitioner fails to establish what proportion of an employee's duties
might be managerial as opposed to operational. See Boyang Ltd. v. INS, 67 F.3d 305(Table), 1995 WL
576839 at *5 (9
th
Cir. 1995 (unpublished)(citing to Matter of Church Scientology Int 'l and finding an
employee who primarily performs operational tasks is not a managerial or executive employee); see also,
IKEA US, Inc. v. U.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999); Republic of Transkei v. INS, 923
F.2d 175,177 (D.C.Cir. 1991).
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 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 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.
In this matter, the petitioner states that it is engaged in providing technical support for concert performances
and other entertainment events, direct sponsorship of such events, performing marketing and advertising work
for select clients, and providing advertising and marketing consultancy services to service providers and
manufacturers who seek to target the South Asian market in the United States. Accordingly, it has a
reasonable need for employees to market and promote the various services it provides, to prepare proposals
and contracts for specific events, to research and select outside service providers and coordinate their duties,
SRC 06 12651805
Page 11
to work with clients to determine their specific needs and define strategies for specific projects, to provide the
advertising and marketing consultancy services, to provide customer service, to make arrangements for
performers and their staffs, such as cars, lodging, catering, etc., and to perform the day-to-day administrative
and financial tasks associated with operating any business. There is also evidence in the record that suggests
that the petitioner may also operate as a reseller of communications equipment and services. While the
petitioner has established that it utilizes contractors to perform the technical aspects related to concert
performances, the petitioner has not established that the beneficiary as president, who is supported by one
part-time employee, is relieved from performing all or most of the administrative, financial, marketing,
creative and operational tasks associated with developing the petitioner's business. Based on the petitioner's
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be
met by the services of a single full-time employee who performs primarily managerial or executive duties.
Regardless, 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) and (B) or the Act. As discussed above, the petitioner has not established this
essential element of eligibility.
Counsel refers to an unpublished decision in which the AAO determined that the beneficiary met the
requirements of serving in a managerial and executive capacity for L-l classification even though he was the
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not
similarly binding.
The AAO acknowledges that a sole employee, in some circumstances, may provide primarily managerial or
executive services for a petitioner. However upon review of the record in this matter, the petitioner has not
provided substantiating evidence that the petitioner employed or would employ individuals to carry out the
marketing and sale of the petitioner's services to its prospective clients. Further, the record does not contain
substantiating evidence that the petitioner utilized the services of outside contractors to carry out many of the
petitioner's basic operational tasks. The petitioner has not established that the beneficiary's duties and those
of his claimed outside service providers elevate the beneficiary's position to a primarily managerial or
executive position. Again, the petitioner's increase in business activities and use of independent contractors
subsequent to the filing of the petition are not relevant to this proceeding. Again, a petitioner must establish
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary
becomes eligible under a new set of facts. Matter ofKatigbak, 14 I&N Dec. at 49.
Finally, the AAO acknowledges counsel's contention that the director applied an inappropriate standard of
proof. In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit
sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter ofMartinez,
21 I&N Dec. 1035, 1036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989); Matter ofSoo
Hoo, 11 I&N Dec. 151 (BIA 1965).
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The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of
each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence,
Matter of E-M- also stated that "(t]ruth is to be determined not by the quantity of evidence alone but by its
quality." Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the
director must examine each piece of evidence for relevance, probative value, and credibility, both individually
and within the context of the totality of the evidence, to determine whether the fact to be proven is probably
true.
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible
evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the
applicant or petitioner has satisfied the standard of proof. See U.s. v. Cardozo-Fonseca, 480 U.S. 421 (1987)
(defining "more likely than not" as a greater than 50 percent probability of something occurring). If the
director can articulate a material doubt, it is appropriate for the director to either request additional evidence
or, if that doubt leads the director to believe that the claim is probably not true, deny the application or
petition.
Upon review of the totality of the record, the director had proper reason to question the petitioner's claims,
appropriately requested additional evidence that should have been available for submission in support of those
claims, gave proper weight to the evidence submitted in response to the request for evidence, and properly
determined that the petitioner had not met its burden to establish that the beneficiary will be employed in a
primarily managerial or executive capacity under the extended petition. The petitioner has not submitted
evidence on appeal to overcome the director's determination on this issue.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed.
Beyond the decision of the director, the AAO finds that the evidence of record is insufficient to establish the
existence of a qualifying relationship between the petitioner and the beneficiary's foreign employer. 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 are the same employer (i.e. a U.S. entity with
a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(1)(C) of the
Act, 8 U.S.C. § 1153(b)(1)(C). Furthermore, in order to be considered qualifying organizations under the
regulation at 8 C.F.R. § 214.2(l)(1)(ii)(G)(2) a petitioner must demonstrate that the U.S. company and the
foreign entity are engaged in the regular, systematic, and continuous provision of goods or services. See 8
C.F.R. § 214.2(l)(1)(ii)(H).
On the Form 1-129, the petitioner stated that the beneficiary was employed by Harvest Advertising and
Marketing in India from 1998 until 2000. The petitioner indicated that this company owns 100 percent of the
U.S. company, thereby creating a parent-subsidiary relationship. In a letter submitted in support of the
petition, dated March 13, 2006, the petitioner stated that the petitioner is a subsidiary of "MIS Expressions
Unlimited." In the same letter, the petitioner stated the following: "Harvest Advertising & Marketing, our
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parent company, was established in 1993 and specializes in advertising and marketing. In February 2000,
Harvest merged with Expressions Unlimited a Sole proprietorship of [the beneficiary]. "
As evidence of the foreign entity's operations, the petitioner submitted: "Computation of Income" statements
for MIS Expressions Unlimited listing the beneficiary as the proprietor, for the accounting years ended on
March 31, 2001, 2002 and 2003; (2) the beneficiary's Indian income tax returns for 2001-2002 and 2002­
2003, identifying the name of his business as MIS Expressions Unlimited; (3) Bank statements for MIS
Expressions Unlimited for the months of January 2004, February 2004 and August 2005; and (4) reference
letters dated between 1997 and 2000. With respect to the U.S. company, the petitioner submitted its Texas
articles of incorporation, dated October 17, 2001, which indicate the company is authorized to issue 1,000,000
shares with a par value of $1.00. The articles of incorporation indicate at article nine that the company is a
wholly-owned subsidiary of "Harvest Advertising and Marketing Ltd., India." The petitioner also submitted
the U.S. company's 2004 and 2002 IRS Forms 1120, U.S. Corporation Income Tax Return, which both
indicate at Schedule K, line 5, that the beneficiary is the sole owner of the company.
The director subsequently instructed the petitioner to submit evidence of the ownership and control of the
U.S. and foreign entities, including stock certificates, stock registers, copies of the corporate
bylaws/constitutions clearly indicating stock ownership, certified affidavits from corporate officers or legal
counsel, or copies of published annual reports. The director also requested evidence of the viability of the
foreign entity, including current financial records, tax records, employee rosters, and recent invoices, bills of
sale, and product brochures.
In response, the petitioner submitted copies of bank statements for MIS Expressions Unlimited for the months
of April, May and June 2006, and an income statement for MIS Expressions Unlimited for the accounting
year ended on March 2005. Counsel stated that the foreign entity is a sole proprietorship, thus no articles of
incorporation or stock certificates could be provided. With respect to the U.S. company, counsel stated:
"since it's a sole proprietorship, there are no stocks being issued." Instead, the petitioner submitted a copy of
its 2005 IRS Form 1120, U.S. Corporation Income Tax Return, which indicates at Schedules E and K that
Harvest Advertising & Marketing owns a 51 percent interest in the company, and is accompanied by a Form
5472, Information Return of a 25% Foreign Owned U.S. Corporation, identifying Harvest Advertising &
Marketing Ltd. as a related party. The petitioner also provided a copy of the beneficiary's 2005 IRS Form
1040, U.S. Individual Income Tax Return, with Schedule C, Profit or Loss from Business, on which he
reported his income from the petitioner and identified himself as a self-employed consultant.
Based on the incomplete and conflicting evidence submitted, the petitioner has not established that the
claimed foreign employer, Harvest Advertising & Marketing Ltd., even exists, much less established that it in
fact owns a majority interest in the petitioner and continues to do business in India. All supporting evidence
related to the foreign entity identifies the business as MIS Expressions Unlimited, a business that the
petitioner claims was merged into Harvest Advertising & Marketing in 2000. 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). Regardless,
the petitioner has not submitted sufficient evidence to establish that either Harvest Advertising & Marketing
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or MIS Expressions Unlimited is currently doing business in India, as it did not submit the requested current
invoices, employee rosters, or other documentation. The bank statements and 2005 financial statement are
insufficient to establish that the claimed foreign employer is doing business as defined in the regulations.
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. at 165. The non-existence or other
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
Furthermore, the petitioner has not consistently identified the name of its parent company, and the record
contains inconsistent claims and evidence as to the U.S. company's actual ownership. As noted above, the
petitioner has concurrently claimed that MIS Expressions Unlimited and Harvest Advertising and Marketing
own the U.S. company, while the beneficiary claims that he is "self-employed," and the petitioner's tax returns
for 2002 and 2004 identify the beneficiary as the sole owner of the company. Counsel's statement that the
petitioner, a Texas corporation, is a sole proprietorship and therefore does not issue stock certificates, is not
persuasive and further raises questions regarding the credibility of the petitioner's claims. Given all of these
unexplained discrepancies, the AAO will not accept the 2005 tax return identifying Harvest Advertising &
Marketing as the majority owner of the U.S. company as evidence of the petitioner's ownership by a foreign
entity.
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer
seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. Us., 345 F.3d 683, 694 (9th Cir., 2003).
However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails to resolve
those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the petitioner's
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa
petition. Matter ofHo, 19 I&N Dec. It 591. In this case, the discrepancies and errors catalogued above lead
the AAO to conclude that the evidence of the beneficiary's eligibility is not credible. Accordingly, the
petitioner has not established the beneficiary's eligibility for the requested visa classification, as there is no
probative evidence of a qualifying relationship between the petitioner and a foreign qualifying organization.
For this additional reason, the petition will not be approved.
The AAO recognizes that USCIS previously approved two L-1A petitions filed by the petitioner on behalf of
this beneficiary. The prior approvals do not preclude USeIS from denying an extension of the original visa
based on reassessment of the petitioner's and beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). It must be emphasized that each nonimmigrant petition
filing is a separate record of proceeding with a separate record and a separate burden of proof. See 8 C.F.R. §
103.8(d). Due to the lack of evidence of eligibility in the present record, the AAO finds that the director was
justified in departing from the previous approvals by denying the present request to extend the beneficiary's
status. If the previous nonimmigrant petitions were approved based on the same unsupported and
contradictory assertions that are contained in the current record, the approval would constitute material and
gross error on the part of the director. Accordingly, the AAO recommends that the nonimmigrant petitions be
reviewed for possible grounds for revocation.
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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.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. 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.