dismissed L-1A Case: Express Carrier Service

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCoPY
File: EAC 05 240 52494 Office: VERMONT SERVICE CENTER Date: AUG 06 2007
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. § 110l(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;;;/
Rob~nn, Chief
Administrative Appeals Office
www.uscis.gov
EAC 05 24052494
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa 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 is a corporation organized under the laws
of the State of New York and alleges that it is a private express carrier service. 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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive or manager. In support of this assertion, the
petitioner submits a brief and additional evidence.
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 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)(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 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 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.
EAC 05 240 52494
Page 3
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)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
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 staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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,
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
EAC 05 240 52494
Page 4
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101 (a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The petitioner ascribed the following duties to the beneficiary in a letter dated August 31, 2005 appended to
the initial petition:
1. Expanding business objective and developing organizational policies;
2. Setting up a working structure through hiring and supporting staff members;
3. Building up the company as a business window to expand company's business in
[the] United States;
4. Coordinating functions and operations between divisions and departments, and to
establish responsibilities and procedures for attaining objectives;
5. Making effort to develop and expand [the petitioner's] clients [sic] base in East
Coast;
6. Directing and coordinating formulation of programs to provide funding for new or
continuing operations to maximize returns on investments, and to increase profit of
the company;
7. Initiating personnel actions, such as hiring, promotions, transfers, discharges, or
disciplinary measures;
8. Travel overseas to coordinate business.
On September 12, 2005, the director requested additional evidence. The director requested evidence
establishing that the beneficiary will be employed primarily in an executive or managerial capacity.
Specifically, the director requested complete position descriptions for the beneficiary and his subordinate
employees, an organizational chart for the United States operation, payroll information, and wage reports for
the employees.
EAC 05 24052494
Page 5
In response, the petitioner provided an organizational chart showing the beneficiary at the top of the
organization directly supervising an assistant and an office manager. In tum, the assistant is portrayed as
supervising a sales employee and an accounting employee. The office manager is portrayed as supervising a
secretary, import personnel, export personnel, and pick-up delivery personnel. The petitioner failed to reveal
the identities of any employees in the organizational chart or to explain whether ambiguous positions such as
"export personnel" involve one employee, multiple employees, or no employees.
The petitioner also provided job descriptions for the beneficiary and for eight subordinate employees. The
beneficiary's job description is materially identical to the previously provided description with the addition of
a breakdown detailing the percentage of time devoted to each duty. The petitioner also described the duties of
the secretary, the drivers, the data entry employee, the sales employee, and the assistant/office manager. The
assistant/office manager, which is apparently one employee, _,even though the organizational chart
implies that it is two separate positions, is described as follows:
Plans, directs and coordinates activities of designated projects from [the beneficiary] and
ensure [s] that goals or objective of projects are accomplished with prescribed time frame and
funding parameter (20% of her working time)[.]
[D]rafts documents, schedule appointments, arranges conference phone calls, prepares
statistics data reports, and other duties as designated by the President (40% of her working
time)[.]
Help [the beneficiary] to oversees [sic] the sale and marketing; reviews analysis of activities,
costs, operations and forecast data to determine the marketing and sales goals (200/0 of her
working time) [.]
Data entry and financial assistance (20% of her working time)[.]
The secretary_I, is described as follows:
Answers phone calls, schedule appointments, handles travel arrangements, contacts clients
(40% of his time)[.]
[M]aintains papers and files, types letters, uses personal computers to run spreadsheet, word
processing, database, support other staffs in the office (40%)[.]
[O]ther duties as designated (20% of his working time)[.]
The other employees are described as performing marketing and sales tasks, packing and delivering freight, or
entering data.
On October 3, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
EAC 05 240 52494
Page 6
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive or
manager. In support of this assertion, counsel submitted additional evidence . Counsel submitted, inter alia, a
New York wage report (Form NYS-45-MN) from the third quarter of 2005 claiming eight employees for the
month of August, the month immediately prior to the filing of the instant petition. The petitioner also
submitted an organizational chart which differs materially from the original organizational chart submitted in
response to the Request for Evidence. Further, counsel asserts in his brief that the secretary,_ is in
charge of the "export department" as part of his "other duties as designated," and that the assistant/office
manager,_ functions as the head of the "import department." No other information regarding these
additional duties was furnished. Finally , counsel argues that the director misconstrued the beneficiary's job
duties , erred in relying on an out-of-date wage report, and overemphasized the small size of the petitioner's
business in denying the petition.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 2l4 .2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary is "building up the company as a business
window to expand company's business," "expanding business objective and developing organizational
policies," and "directing and coordinating formulation of programs to provide funding for new or continuing
operations." The petitioner did not, however, specifically define what objectives and policies will be
expanded or developed, what programs will be directed and coordinated, or what, exactly, the beneficiary will
do in "building up" the company. The fact that the beneficiary has been given a managerial title, is the sole
supervisory employee, and has been ascribed job duties which include vague, lofty-sounding functions does
not establish that the beneficiary is actually performing managerial duties. Specifics are clearly an important
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
EAC 0524052494
Page 7
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Moreover, many of the duties ascribed to the beneficiary appear to be non-qualifying administrative or
operational tasks that do not rise to the level of being managerial duties. For example, the petitioner is
described as "coordinating functions and operations between divisions and departments." However, given
that none of the subordinate employees have been established to be managerial, supervisory, or professional
in a nature (see infra), this lofty-sounding duty is more akin to the supervision of employees who are
performing the tasks necessary to provide a service, i.e., acting as a first-line supervisor. Moreover, the
beneficiary is described as "making effort to develop and expand [the petitioner's] clients [sic] base." While
vague, this function appears related to marketing and sales tasks, which are not managerial in nature when
performed by the beneficiary. 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 International, 19 I&N
Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports submitted on appeal, payroll records, and job
descriptions for the subordinate employees, the beneficiary appears to manage a staff of seven or eight
employees who are engaged in operating the petitioner's business, i.e., an express carrier service.' While the
petitioner has given the subordinate employees managerial titles and has described the "secretary" and
"assistant/office manager" as having supervisory or managerial functions, the petitioner has not established
that these employees are primarily engaged in performing supervisory or managerial duties. To the contrary,
the job descriptions for these subordinate employees indicate that they are primarily engaged in performing
tasks related to providing a service or producing a product, i.e., clerical and administrative tasks. Inflated job
titles and artificial tiers of subordinate employees are not probative and will not establish that an organization
is sufficiently complex to support a managerial position. In view of the above, the beneficiary would appear
to be primarily a first-line supervisor of non-professional employees, the provider of actual services, or a
combination of both. A managerial employee must have authority over day-to-day operations beyond the
! As indicated above, counsel to the petitioner provided an organizational chart on appeal which differs
materially from the chart submitted in response to the Request for Evidence. A petitioner may not make
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Moreover, the director specifically
requested an organizational chart in the Request for Evidence. The AAO will not consider the materially
different organizational chart submitted on appeal for any purpose. See Matter of Soriano, 19 I&N Dec. 764
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on
the organizational chart before the director.
EAC 0524052494
Page 8
level normally vested in a first-line supervisor, unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. 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 termprojession 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 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. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of any of the beneficiary's subordinate employees. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.'
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
2While the petitioner has not specifically argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary will primarily be a first-line supervisor of non-professional employees and is performing non­
qualifying administrative or operational tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
managerial, nor can it deduce whether the beneficiary is primarily performing the duties of a function
manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
EAC 0524052494
Page 9
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor and/or to be engaged in performing non-qualifying administrative or operational tasks. Therefore,
the petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
Although a company's size alone, without taking into account the reasonable needs of the organization, may
not be the determining factor in approving a visa for a multinational manager or executive (see §
101(a)(44)(C) of the Act), it is appropriate for CIS to consider the size of the petitioning company in
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees
who would perform the non-managerial or non-executive operations of the company, or a "shell company"
that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F.
Supp. 2d 7, 15 (D.D.C. 2001). The reasonable needs of the petitioner serve only as a factor in evaluating the
lack of staff in the context of reviewing the claimed managerial or executive duties. The petitioner must still
establish that the beneficiary is to be employed in the United States in a primarily managerial or executive
capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not
established this essential element of eligibility.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.