dismissed L-1A Case: Fabric And Garment

identifying~ deleted. ,
prevent clearly unwaJTaJ*d
invasion of personal priWCJ
PUBLICcopy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04 213 51205 Office: CALIFORNIA SERVICE CENTER Date: AUG ,0 3 1JJJ1
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. § llOl(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.
~::~n~f
Administrative Appeals Office
www.uscis.gov
WAC 04 21351205
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 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 California and is allegedly engaged in the fabric and garment business. 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.I
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)(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) 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
'It should be noted that, according to California state corporate records, the petitioner's corporate status in
California has been "dissolved." Therefore, as the petitioner has voluntarily elected to wind-up its operations
and has completely dissolved its business as a corporation, the company no longer exists and can no longer be
considered a legal entity in the United States. Therefore, if the petition were not being dismissed for those
reasons further explained herein, this would call into question the petitioner's continued eligibility for the
benefit sought.
WAC 04 213 51205
Page 3
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.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition , which involved the opening of a
new office , may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (1)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in •
paragraph (l)(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 lOl(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,
WAC 04 213 51205
Page 4
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition or on appeal whether the beneficiary will 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 petitioner may not claim that a beneficiary will 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 described the beneficiary's job duties in the United States in a letter dated July 19, 2004 as
follows:
[The beneficiary] has been transferred and become the President and CEO of [the petitioner]
since Oct. 2003. As the President of [the petitioner], [the beneficiary's] duties include, but
not limited to, the following: (1). Formulating and determining corporate policies and
strategies in accordance with general directives from parent company; (2). Directing and
coordinating company daily activities to obtain optimum efficiency; economy of operations,
and maximization of profits; (3). Directing and coordinating activities to develop new
markets and to explore business opportunities; (4). Supervising all subordinate company
personnel and exercising ultimate authority to take personnel actions including hiring and
dismissing; (5). Reviewing operating, sales reports and financial statements to determine
business progress.
The petitioner also submitted an organizational chart and wage reports indicating that the petitioner has a total
WAC 04 213 51205
Page 5
of four employees including the beneficiary. The chart shows the beneficiary at the top of the organization
supervising a marketing director, a chief accounting officer, and an administrative officer.
On August 5, 2004, the director requested additional evidence. The director requested, inter alia, a more
detailed description of the beneficiary's duties and the duties of all employees supervised by the beneficiary.
In response, the petitioner submitted a more detailed organizational chart in which the beneficiary's three
subordinate employees are further described as follows:
Chief Accounting Officer - College graduate majoring in Accounting, responsible for the
Financial Department. Duties also include direct financial management, coordinate CPA for
tax filing and the financial report.
[A]dministrative Officer - College graduate in Business Management, responsible for the
office management. Duties also include administration 'of personnel records and performance
[sic] office supplies and daily business schedules and operation.
[M]arketing Director - Responsible for the Marketing Department. Duties also include direct
the import/export activities, coordinate all the necessary business, governmental and
transportation arrangement and documentation as well as scheduling and liaison between
brokers customer clearance and warehouse requirements.
However, the petitioner submitted the same job description for the beneficiary that was submitted with the
initial petition.
On October 4, 2004, the director denied the petition. The director concluded that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, the petitioner asserts that the director erred and that the beneficiary's duties are primarily those of
an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(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(1)(3)(ii). The petitioner's description of the job
WAC 04 21351205
Page 6
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 will formulate and determine corporate policies
and strategies; will direct and coordinate daily activities; and will direct and coordinate "activities to develop
new markets and to explore business opportunities." The petitioner did not, however, specifically define what
policies and strategies will be formulated and determined; what daily activities will be directed and
coordinated; or what activities concerning the development of new markets will be directed and coordinated.
Importantly, the petitioner failed to explain what, exactly, the beneficiary will do on a day-to-day basis or to
reveal who, if not the beneficiary, will perform the non-qualifying tasks inherent in the broad duties ascribed
to her. The fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job
description which includes lofty duties does not establish that the beneficiary will actually perform
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. 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 of California, 14 I&N Dec. 190
(Reg. Comm. 1972).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or managerial employees. As explained in the organizational chart, wage reports, and job
descriptions for the subordinate employees, the beneficiary appears to manage a staff of three employees who
are engaged in operating the petitioner's business. While the petitioner has given the subordinate employees
lofty titles, the petitioner has not established that these employees are primarily engaged in performing
supervisory or managerial duties. To the contrary, the subordinate employees appear to be engaged in
performing tasks related to providing a service or producing a product, i.e., bookkeeping, record keeping,
clerical duties, ordering supplies, sales, marketing, and import/export processing. 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. 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). A managerial employee must have authority over day-to-day operations beyond the level normally
vested in a first-line supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the
Act; see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
WAC 04 21351205
Page 7
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 term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of any of the beneficiary's subordinate employees. The record is
devoid of any evidence establishing that university degrees are necessary for these positions. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.2
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
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
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(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. 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 manager of non-professional employees. Absent a clear and credible
breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine what
proportion of her duties would be managerial, nor can it deduce whether the beneficiary will primarily
perform the duties of a function manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22, 24
(D.D.C. 1999).
WAC 04 213 51205
Page 8
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. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an
executive capacity.
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 § 10 I (a)(44)(C) of the Act. 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). Furthermore, the reasonable needs of the petitioner will not
supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity
as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will primarily perform
managerial or executive duties, and the petition may not be approved for that reason.
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.
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(l)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity."
WAC 04 213 51205
Page 9
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm.
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595. As ownership is a critical element of this visa classification,
CIS may look beyond the issuance of paper stock certificates and into the means by which stock ownership
was acquired.
In this matter, the petitioner asserts that it is 100% owned by the foreign employer. In support of this assertion,
the petitioner submits a stock certificate, stock ledger, corporate minutes, tax returns, and articles of
incorporation. However, the record is rife with inconsistencies regarding the consideration allegedly paid by the
foreign entity in exchange for the petitioner's stock. For example, the petitioner indicates in its 2003 IRS Form
1120 that $1 million was provided to the petitioner in exchange for the issuance of common stock. This assertion
was repeated in the stock ledger and in the minutes dated June 2003, which also indicate that the foreign entity
agreed to loan the petitioner an additional $1.5 million. However, the 2003 IRS Form 1120 does not account for
this loan, and the petitioner's California Notice of Transaction indicates that the foreign entity paid $2.5 million,
and not $1 million, for the petitioner's stock. Finally, the wire transfer records for the $2.5 million transfer
indicate that these funds were wired as "payment for goods." The petitioner fails to resolve any of these serious
inconsistencies in the record which undermine the credibility of the petition. 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).
Furthermore, the lease submitted by the petitioner indicates that the beneficiary is the lessee and that he is
doing business as the petitioner. As indicated above, the petitioner asserts that it is owned and controlled by
the foreign entity, not by the beneficiary. Therefore, the lease undermines both the petitioner's assertion that
it is owned and controlled by the foreign entity and that it is "doing business" in a regular, systematic, and
continuous fashion. In the absence of evidence establishing that the petitioner is maintaining a place of
business, it has not been established that the petitioner is "doing business."
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
and the petition may not be approved for this additional reason.
The initial approval of an L-l A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
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
WAC 04213 51205
Page 10
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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.