dismissed L-1A Case: Food Import/Export

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U.S. Department of Homeland Security
20 Massachusetts Ave, N.W., Room 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
~PUBLIC COpy
File: WAC 04 15451494 Office: CALIFORNIA SERVICE CENTER Date:
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JUL 262007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~ ertP. Wiemann,C 'ef
r:Appeals Office
www.uscis.gov
WAC 04 15451494
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its branch manager as an
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a foreign corporation registered to
operate in the State of California, claims to be a branch of Bombay Export & Imports (India) Private, Ltd.,
located in Mumbai, India, and is engaged in the import and export of foodstuffs. 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 would be
employed in the United States in a primarily managerial or executive capacity.
Counsel for the petitioner filed an appeal in response to the denial. On appeal, the counsel contends that the
petitioner demonstrated eligibility at the time of filing and that the director's decision was erroneous. In
support of this contention, counsel for the petitioner submits a brief and additional evidence.
To establish eligibility for the L-1 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
WAC 04 15451494
Page 3
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 ofa
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 (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined In
paragraph (l)(l)(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 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 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
WAC 04 15451494
Page 4
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In the initial petition, counsel submitted a letter from the U.S. petitioner dated April 26, 2004 which outlined
the beneficiary's duties while employed in the United States. The petitioner described his duties as follows:
[The beneficiary] prepares the necessary documents required for order execution and also
coordinate[ s] with the logistic departments and warehouses. [The beneficiary] is responsible
for the overall coordination with the offshore office, local suppliers and customers in
ensuring packaging requirements meet local Food and Drug Administration requirement[s] as
well as ensuring the integrity of the product quality.
Also, he has been responsible for the negotiation and finalization with transportation
companies, shipping companies and airlines. He has also been monitoring the progress with
customers and taking corrective measures if any deviations are observed. He shall keep a
report of all the marketing progress made to different customers by the US marketing team
and prepare a progress report to submit to [the foreign entity].
Once the Food and Drug Administration obstacles have been overcome, [the beneficiary] will
continue to expand the business. He will hire at least four employees. He will manage and
direct the operation of the branch office, supervise professionals who will in tum supervise
line employees. He will recruit the staff, over which he will have hiring and firing authority.
The petitioner also submitted copies of its quarterly tax returns for the quarters ending December 31, 2003
and March 31, 2004. Both documents indicated that the beneficiary was the petitioner's sole employee.
On June 9, 2004, the director requested additional evidence pertaining to the nature of the U.S. business,
including a detailed overview of the beneficiary's duties, a list of all staff members and employees and their
place in the petitioner's organizational hierarchy, as well as evidence of the employment and wages paid to
the petitioner's claimed U.S. employees. The petitioner submitted a lengthy response dated August 31, 2004,
WAC 04154 51494
Page 5
with the requested documentation. The documentation submitted included quarterly wage reports for the past
three quarters, and an organizational chart for the petitioner. In a letter dated August 19, 2004, the petitioner
provided the following updated description of the beneficiary's duties:
[The beneficiary] has been managing the overall operations of the U.S. branch office, located
in Fremont, California. He was employed by the petitioner in the qualifying
managerial/executive capacity. In his role as Branch Manager, [the beneficiary] directs and
supervises professionals on a regular basis to achieve petitioner's business objectives, as set
forth in the business plan. Moreover, [the beneficiary] supervises these professionals while
performing essential functions with respect to the business enterprise. [The beneficiary] has
great latitude in his decision making capacity, and in formulating U.S. branch office goals
and strategies for the growth and development of the office.
[The beneficiary's] main responsibilities include human resources management function,
sales and marketing management function, and operational management function. He has
been performing all the above stated functions with the assistance of professionals in each
area as will be discussed in detail below. Each of the professionals report directly to [the
beneficiary] and are supervised directly by him. He has been given complete authority by the
parent company abroad to act in a manner which is necessary and in the best interest of the
branch office. [The beneficiary] has the authority to hire and fire [personnel] and take other
personnel actions as required.
The letter indicated that the petitioner utilizes the services of a customs broker, a marketing firm, a distributor,
and an accounting firm. The petitioner indicated that it currently employed a bookkeeper and had several
vacancies for the positions of assistant manager of business development, assistant manager of operations and
administration, warehouse supervisor, and sales representative. The petitioner emphasized that two
promotional and marketing firms assist the beneficiary with sales and marketing on a commission basis.
On September 14, 2004, the director denied the petition. The director, who reviewed the record to determine
eligibility under both managerial and executive capacity, found that the beneficiary's stated duties had
satisfied neither. The director noted that the nature and structure of the business as currently functioning did
not appear to support the position of a bonafide manager or executive. In addition, the director noted that
contrary to the petitioner's contentions, the petitioner had not established that the beneficiary would exercise
authority over subordinate employees or manage an essential function or component of the organization.
On appeal, counsel for the petitioner asserts that eligibility had been proven and requests reconsideration.
Upon review, counsel's assertions are not persuasive. 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.ld.
WAC 04 15451494
Page 6
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has
not demonstrated that the beneficiary will be employed in a primarily managerial or executive capacity.
Whether the beneficiary is a manager or executive employee turns on whether the petitioner has sustained its
burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B)
of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the
beneficiary spends on them. This failure of documentation is important because several of the beneficiary's
daily tasks are not considered to be managerial duties. For example, the petitioner states that the beneficiary
is responsible for the "overall coordination with the offshore office, local suppliers and customers in ensuring
packaging requirements meet local and Food and Drug Administration requirements." The record also
indicates that he is responsible for negotiations with travel companies and airlines, and further states that the
beneficiary maintains customer relationships, makes new contacts, "is under discussion with buyers," and has
launched an advertising campaign and promotional activities. These duties do not fall directly under
traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. of
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
Additionally, in response to the request for evidence, the petitioner claims that the beneficiary devotes the
majority of his time to overseeing personnel, and that he currently supervises a staff of professionals.
Specifically, the petitioner relies on the organizational chart, which claims that the beneficiary is responsible
for overseeing several independent contractors; namely, an accounting firm, a customs broker, a commission
agent, and a distributor. While the organizational chart identifies these contractors by name, the record
contains no evidence that these contractors provided services to the petitioner. For example, the petitioner's
Form 1120-F, U.S. Income Tax Return of a Foreign Corporation, indicates that it had no labor costs and paid
no commissions during the tax year, which ended on March 31, 2004. This evidence, coupled with the
petitioner's quarterly tax returns for the quarters ending December 31, 2003, March 31, 2004 and June 30,
2004, demonstrate that the beneficiary was the only person who was paid wages. The record, therefore,
demonstrates that at the time of filing on May 6, 2004, the beneficiary was the petitioner's sole employee.
Clearly, this establishes that the beneficiary was the sole employee, and corroborates the claim in the initial
letter of support that the beneficiary would soon hire four managers. While the petitioner claims in the
response to the request for evidence that the beneficiary was currently supervising a subordinate staff of
professionals, there is no evidence to support a finding that this staff was in place at the time the petition was
filed. Merely claiming that the beneficiary is a manager or an executive by virtue of supervising a
subordinate staff of employees or contractors, without documentation that such a staff existed at the time of
filing, is insufficient to establish eligibility in this matter. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSofJici,
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972)). In addition, the petitioner must establish eligibility at the time of filing the nonimmigrant visa
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes
eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
WAC 04 15451494
Page 7
It is noted that on appeal, counsel refers to several unpublished decisions 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.
Moreover, the AAO notes from the record that the beneficiary appears to be in charge of all tasks necessary to
start and eventually expand the petitioner's business. The fact that the beneficiary engages in negotiations
with transportation companies, deals with customers, and monitors the company's marketing practices
suggests that he is directly involved in sales and tasks essential to the continued success of the business. If
the beneficiary is engaged in client-related services, it must be noted that an employee who primarily
performs the tasks necessary to produce a product or to provide services is not considered to be employed
primarily 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 fact that an individual manages a small business does not necessarily establish eligibility for
classification as an intracompany transferee in a managerial or executive capacity within the meaning of
section 10l(a)(44) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The record does not establish
that a majority of the beneficiary's duties have been or will be primarily directing the management of the
organization. The petitioner has not demonstrated that it has reached a level of organizational complexity
wherein the hiring/firing of personnel, discretionary decision-making, and setting company goals and policies
constitutes significant components of the duties performed on a day-to-day basis. The regulation at 8 C.F.R.
§ 2l4.2(l)(3)(v)(C) allows the intended United States operation one year within the date of approval of the
petition to support an executive or managerial position. There is no provision in CIS regulations that allows
for an extension of this one-year period. Based on the evidence furnished, it cannot be found that the
beneficiary has been or will be employed primarily in a qualifying managerial or executive capacity. For this
reason, the petition may not be approved.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.