dismissed L-1A Case: Food Service

identifyingdata deletedto
preventclearlyunwarranted
invasionof personalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC-04-219-52795 Office: VERMONT SERVICE CENTER Date: AUG 0 32006
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. § I 101 (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.
~~~=:=)
~~..-,--' ~.
R:oDertP. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC-04-219-52795
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 petition seeking to qualify the employment of its chief executive
officer as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(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 Jersey and is engaged in operating a food establishment and
catering services operation. The petitioner claims that it is the affiliate of Steel III and IV, located in
Moscow, Russia.
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 capa~ity.
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 petitioner
demonstrated the beneficiary would be employed in a primarily managerial position. In support of this
assertion, the petitioner submitted a brief but no 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)(I)(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
EAC-04-219-52795
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 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 IOI(a)(44)(A) of the Act, 8 U.S.C. § llOI(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 10I(a)(44)(B) of the Act, 8 U.S.c. § I 101(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, the petitioner described the beneficiary's job duties as follows:
1. Analysis of price of competing restaurants;
EAC-04-219-52795
Page 4
2. Analysis of [v]olume of [s]ales of each meal on menu and its share of profit;
3. Increase effectiveness of each menu meal;
4. Work out season menus
5. Designing and drawing plans for the construction of a fast food window;
6. Creation of complex lunches with various menu options at fixed prices;
7. To work out unified meals at a single price for creation of transformer menu;
8. Designing plans and building area for baking breads, rolls, and cakes on the premises;
9. Retrofitting the dining room to build a coffee shop and vegetable and dairy bar;
10. Hiring professionals to design a logo and rebuild the front entrance into a luxury looking
entrance;
11. Order and [p ]urchase specialized automobile with meal heating and cooling ability for
delivery of food;
12. To come to the best offer in sandwiches section in comparison with competing offers;
13. To lead registration of permanent clients and supply them with bonus certificates;
14. To find out of permanent clients those aged and disabled people requiring home delivery;
15. To enter into agreements with agents and services for mass celebrations, holidays, etc. ;
16. To arrange sales of hot dogs, sandwiches and coffee for street celebrations. Purchase
equipment for same;
17. Joining restaurant association;
18. Entering into contracts with tourist and bus companies for supply of hot food for passengers ;
19. Purchase and installation of complex accounting system to account volume of sales, supply
reporting.
20. Open web page on internet ;
21. Insure stable relationship with media ;
22. Implementing marketing ideas.
On August, 2, 2004, the director requested additional evidence. Specifically, the director requested evidence
that the beneficiary's services are to be for a temporary period, additional evidence that the beneficiary 's
duties would be managerial or executive in nature, a more detailed description of what the beneficiary's
regular duties would be .
In response, the petitioner submitted an affidavit of an unrelated third party as an "expert opinion" of the
beneficiary's duties.
On September 8, 2004 , the director denied the petition. The director determined that the petitioner had not
established the beneficiary would be employed in a managerial or executive nature.
On appeal, counsel for the petitioner asserts that it demonstrated the beneficiary 's duties would be managerial
in nature.
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(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be
EAC-04-2l9-52795
Page 5
performed by the beneficiary and indicate whether such duties are either in an executive or managerial
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If it is asserted that
the beneficiary is going to act in both an executive an managerial capacity then it must be established that the
beneficiary's duties satisfies all of the criteria for each definition. The petitioner must establish, through the
submission of probative evidence, that the beneficiary will actually be employed primarily in a managerial or
executive status. In this case the petitioner attempts to argue separate criteria of each definition of managerial
and executive capacity without establishing all of the criteria for either and is not persuasive.
Rather than provide a detailed description of the beneficiary's job duties the petition generally paraphrases the
statutory definition of managerial and executive status and makes conclusory assertions with regard to the
nature of the beneficiary's position. As an example, the affidavit submitted by the petitioner in response to
the director's RFE states, "It is clear [the beneficiary] will be performing executive skills" based on the fact
that he drafted a business plan. The letter also states that "[the beneficiary] has established the goals and
policies of the business ... will receive no supervision ... and will be directing the management of the
organization." This letter then goes on to state that the beneficiary will be hiring an array of professionals to
perform a list of duties which include such things as designing a web site, setting up menus, managing media
relations, designing the company logo and redesigning the facility. Aside from the fact that these duties have
not been demonstrated to constitute managerial or executive duties, there is no evidence in the record to
support that any of these activities will occur or that the petitioner has a business plan that is reasonably
designed to implement such duties. Some of the duties listed are not clear and thus not credible. As an
example, it cannot be determined that "setting up seasonal menus" is a duty that will occupy a significant
amount of time, and "coming up with the best offer in sandwiches" is an aspirational goal as opposed to a
specific managerial duty. The record contains little evidence pertaining to the petitioner that indicates with
specificity how the beneficiary will actually spend his time or be able to exercise any executive level
authority as opposed to performing the daily first-line supervisor duties of managing the employees. Many of
the duties listed are ambiguous business ideas of an entrepreneurial nature and are listed as if the beneficiary
himself will perform the duties as opposed to managing them.
A petitioner may not seek eligibility based on a set of future facts (hiring two managers in the future, or other
professionals to perform work) when it might become eligible. In this case the petitioner is attempting to
characterize the facts such that purchase of an established business is not the opening of a new office, and
then relying on a speculative set of future facts. This muddles the requirements of establishing the
requirements of a new office petition under 8 C.F.R. § 2l4.2(l)(3(v) and establishing that the beneficiary is
transferring into a functioning managerial position as required by 8 C.F.R. § 214.2(l)(1)(A). The tax return
submitted for the year 2003 indicate that the business is not profitable, and yet it is proposed that it will
employ and be able to support the beneficiary in a managerial and executive position, that the petitioner will
be hiring two more managers, and will hire an array of professionals to redesign or "revitalize" the business.
The ambiguous description lacking a detailed outline of the beneficiary's daily duties, the lack of supporting
evidence that these types of activities have occurred in the past, the questionable nature of the duties listed
(designing menus or building a website), and the fact that the petitioner is relying on a set of future facts
EAC-04-219-52795
Page 6
which rely on financial support not presently established by the record leads the AAO to conclude that the
totality of the evidence in the record does not support that the beneficiary will be acting primarily in a
managerial or executive status. While the AAO can accept that some executive or managerial decisions
might be made by the beneficiary, the record does not support that the beneficiary will be primarily employed
in such a capacity. The record as it is presently constituted does not support that the beneficiary will be
directing the management of the organization.
The petitioner's assertion that the director selectively "adopted" the expert opinion is a mischaracterization.
The definitions of managerial and executive status are contained at 8 U.S.C. § 1101(a)(44)(A) and (B)
respectively, and have long established history and precedent having been promulgated by Citizenship and
Immigration Services (formerly INS) under the authority of the Attorney General which was vested in him by
congress. Asserting that an "expert" can define executive or managerial status for the purpose of this
classification is not a true statement. The AAO may, in its discretion, use as advisory opinion statements
submitted as expert testimony. However, where an opinion is not in accord with the law, or with other
information contained in the record, or is in any way questionable, the AAO is not required to accept or may
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). In this
case the affidavit submitted makes no mention of the regulatory requirement and attempts to supplant the
regulatory defition of managerial and executive status with its own characterization of what those terms mean
in general business usage. As a legal opinion it is not persuasive and will not be afforded any weight in these
proceedings. The director's statement highlighted the only relevant statement in the document, and was not in
any wayan endorsement of the "expert's" letter.
Counsel and petitioner's characterization that there is little difference between the criteria for a new office
petition and a petition for an existing office has no basis in fact or law and contradicts the plain meaning of
pertinent regulations. The criteria for establishing eligibility of a new office petition are contained at 8 C.F.R.
§ 214.2(1)(3)(v). The criteria for establishing eligibility for an existing office are listed above and contained
at 8 C.F.R. § 214.2(1)(3). In this case the record indicates that the petitioner has been conducting business
since 1997. A "new office" is defined as an organization that has been conducting business in the United
States for less than one year and, as such, the petitioner cannot be deemed to be a new office for purposes of
the L-1 nonimmigrant classification. 8 C.F.R. § 2l4.2(l)l)(ii)(F). In this case the record does not support that
the petitioner can financially support a non-revenue producing executive or managerial position. Thus, the
director's conclusion that the petitioner is not currently eligible to receive this classification is in accordance
with the pertinent regulations and based on the record.
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and
employees in the future. However, 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). In the instant matter, the petitioner has not reached the point that it can employ the beneficiary
in a predominantly managerial or executive position.
EAC-04-219-52795
Page 7
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity, as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, the petition also may not be approved because there is insufficient
evidence of a qualifying relationship between the petitioner and the Russian entity. 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 (BIA 1988); 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.
The petitioner claims that it is the affiliate of the foreign entity by way of the beneficiary's sole ownership of
both companies. In support of this contention, the petitioner submits a copy of its "Charter of the Limited
Liability Partnership Steel III and V," where Chapter 11, Article 8 states that for consideration of 10,000
rubles, the beneficiary has received one share in the foreign entity, thereby encompassing 100% of the
outstanding charter capital. With regard to the ownership of the U.S. entity, the only evidence submitted in
support of this claim is a copy of its stock certificate number 4 issued in May 2004 (the exact date of issue is
not noted). The certificate indicates that the beneficiary owns 1,500 shares of the petitioning entity.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual
control of the entity. See Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure
of all relevant documents, CIS is unable to determine the elements of ownership and control.
In this matter, the AAO cannot conclude that a qualifying relationship exists between the parties.
Specifically, the petitioner submits stock certificate number 4 issued to the beneficiary in 2004. There is no
ledger in the record, thereby rendering it impossible to determine whether other shares of stock are currently
outstanding. Since the petitioner was incorporated in 1997, and stock certificates 1, 2, and 3 and unaccounted
for, it is simply unfeasible to rely on this one share certificate as decisive evidence of the beneficiary's sole
ownership of the petitioner. For this additional reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
EAC-04-219-52795
Page 8
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afJ'd, 345 F.3d 683.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed and the petition hereby denied.