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PUBUCCOft
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04'08453756
IN RE: Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
F!B 0' 1 2D07
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.
~
..
--------= ~:-.
Robe . iemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 084 53756
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 China Trade
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)(l5)(L). The petitioner is a corporation
organized under the laws of the State of California and is allegedly a freight forwarding and non-vessel
operating common carrier. The petitioner claims a qualifying relationship with an overseas branch office in
China. The petitioner seeks to extend the beneficiary's stay for an additional two years.
The director denied the petition concluding that the petitioner did not establish (1) that it has a qualifying
relationship with the foreign entity; or (2) that the beneficiary has been or will be employed in the United
States in a primarily managerial or executive capacity.
The petitioner 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 in denying the petition
because he failed to consider evidence allegedly submitted in response to a Request for Evidence. The
petitioner provides on appeal a copy of the materials allegedly submitted in response to the Request for
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 (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
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
WAC 04 084 53756
Page 3
education, trammg, 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.
As a threshold issue, the AAO must address the petitioner's assertion that it provided additional evidence in
response to the director's Request for Evidence. The petitioner submitted its initial extension petition on
February 4, 2004. As permitted by 8 C.F.R. § 2l4.2(1)(14)(i), on March 9, 2004, the director requested
additional evidence. The director requested, inter alia, evidence establishing a qualifying relationship and
establishing that the beneficiary will be employed primarily in an executive or managerial capacity. On April
28,2004, the petitioner responded to the Request for Evidence by returning the top sheet of the March 9,2004
Notice of Action and a single letter dated February 2, 2004 from counsel to the petitioner to his client
confirming the filing of the initial petition.
As clearly explained in 8 C.F.R. § 103.2(b)(11):
All evidence submitted in response to a Service request must be submitted at one time. The
submission of only some of the requested evidence will be considered a request for a decision
based on the record.
While counsel to the petitioner asserts that it submitted additional documentary evidence in response to the
Request for Evidence on or about June 1, 2004, the regulations limit evidentiary submissions in response to a
Request for Evidence to a single response. 8 C.F.R. § 103.2(b)(1l). Therefore, even if these documents were
received by the California Service Center on June 1, 2004, they were correctly disregarded since the petitioner
had already responded to the Request for Evidence on April 28, 2004. Likewise, the AAO will also disregard
the evidence allegedly submitted on June 1, 2004 in response to the Request for Evidence and will adjudicate
the appeal based on the record properly before the director.'
In view of the above, the first 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. § ll01(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
I Moreover, because the petitioner was put on notice of the required evidence, was given a reasonable
opportunity to provide it for the record before the visa petition was adjudicated, and failed to submit the
requested evidence in compliance with 8 C.F.R. § 103.2(b)(11), the AAO will not consider the evidence as if
it were independently produced on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of
Obaigbena, 19 I&N Dec. 533 (BIA 1988).
WAC 04 084 53756
Page 4
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(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 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.
In a letter dated January 16, 2004 appended to the initial 1-129 petition, the petitioner described the
beneficiary's job duties as follows:
In the position of China Trade Manager, [the beneficiary] will continue to augment our
competitive service to [the petitioner's] Chinese clients and ensure our U.S. customers are
provided with "real time service." [The beneficiary's] proven supervisory skills, at both [the
petitioner's] locations in China and the U.S., have proven instrumental in training and
directing our U.S. customer service representatives to solve many business problems in
China, without waiting for a response from Taiyuan.
WAC 04 084 53756
Page 5
On March 9, 2004, the director requested additional evidence establishing that the beneficiary will be
employed primarily as an executive or manager. The director requested a list of the petitioner's employees, an
organizational chart, a detailed description of the beneficiary's job duties, and quarterly wage reports. As
indicated above, the petitioner failed to provide any of these documents in its response to the Request for
Evidence submitted on April 28, 2004.
On October 27, 2004, the director denied the petition. The director determined 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 beneficiary's duties are primarily those of an executive or manager
and argues that the director erred in not considering the evidence submitted on June 1, 2004, which it
resubmits on appeal.
Upon review, the etitioner'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. Id.
The petitioner has failed to establish that the beneficiary will act in a "managerial" capacity or will supervise
and control the work of other supervisory, professional, or managerial employees. In support of its
application, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary does on a day-to-day basis and fails to establish the duties of
subordinate employees, if any. The petitioner failed to provide an organizational chart, wage reports, or a
more detailed job description despite being requested by the director to do so. 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). 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). Failure to submit
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R.
§ 103.2(b)(l4).
Similarly, the petitioner has failed to prove 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
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
WAC 04 084 53756
Page 6
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. As indicated above, as the petitioner has failed to provide a detailed
job description for the beneficiary, an organizational chart, or wage reports, the petitioner has not established
that the beneficiary will be acting primarily in an executive capacity. Failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4).
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in an executive
or managerial capacity, and the petition may not be approved for that reason.
The second issue in the present matter is whether the petitioner has established that it has a qualifying
relationship with the foreign employer.
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)(1)(ii)(G) of this
section.
8 C.F.R. § 2l4.2(i)(1)(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)(I)(ii) of this section."
While the petitioner asserts in the Form 1-129 that it is the parent of a "Chinese branch office," the petitioner did
not provide any evidence establishing its ownership and control of the foreign entity. On March 9, 2004, the
director requested additional evidence establishing a qualifying relationship including stock ownership
information, articles of incorporation for the foreign entity, meeting minutes, and an annual report. As explained
above, the petitioner failed to provide any of the requested evidence in its April 28, 2004 response to the Request
for Evidence. Consequently, the director denied the petition on October 27,2004 because the petitioner failed to
establish a qualifying relationship.
On appeal, the petitioner asserts that it does have a qualifying relationship with the foreign entity and argues
that the director erred in not considering the evidence submitted on June 1, 2004, which it resubmits on
appeal.
Upon review, the petitioner's assertions are not persuasive.
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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
WAC 04084 53756
Page 7
(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.
In this matter, the petitioner has failed to provide any evidence establishing a qualifying relationship. Going
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of
Treasure Craft of California, 14 I&N Dec. 190). Moreover, the petitioner failed to provide evidence of a
qualifying relationship even though the director specifically requested this in his Request for Evidence.
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R. § 103.2(b)(14).
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 that reason.
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. The prior approvals do not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was successful in the
past in petitioning for the beneficiary, the director properly denied the petition in this case?
21n addition to those issues addressed above, counsel to the petitioner also argues on appeal that the director
failed to follow "the Yates memo of April 23, 2004." This Memorandum provided guidance on the process
by which an adjudicator, during the adjudication of a subsequent request for petition extension, may question
another adjudicator's prior approval of a nonimmigrant petition where there has been no material change in
the underlying facts. Specifically, this Memorandum states that adjudicators should give deference to prior
approvals involving the same underlying facts except where: (1) it is determined that there was a material
error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place;
or (3) there is new material information that adversely impacts the petitioner's or beneficiary's eligibility.
Memo. From William R. Yates, Associate Director for Operations, to Service Center Directors, The
Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent
Determination Regarding Eligibility for Extension of Petition Validity (April 23, 2004). The Memorandum
also states that the adjudicator should clearly articulate the material error, changed circumstances, or new
material information in his or her decision. Id.
The Memorandum does not apply to this matter in that the petitioner failed to provide any of the documentary
evidence requested by the director. Before the petitioner could argue that the director erred in not deferring to
an interpretation of evidence provided in support of prior approved petition, it would need to first provide the
evidence appropriately requested by the director in this matter. See 8 C.F.R. § 214.2(1)(14)(i). It must be
emphasized that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d).
WAC 04 084 53756
Page 8
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.
Furthermore, this Memorandum limits its authority on Page 4 of the Memorandum:
This memorandum is intended solely for guiding USCIS personnel in performance of their
professional duties. It is not intended to be, and may not be relied upon, to create any
right or benefit, substantive or procedural, enforceable at law by any individual or other
party in removal proceedings, in litigation with the United States, or in any other form or
matter.
Id.
Courts have consistently supported this position. Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir.
2000) (holding that CIS memoranda merely articulate internal guidelines for INS personnel; they do not
establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also Noel v.
Chapman, 508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to INS district directors regarding
voluntary extended departure determinations to be "general statements of policy"); Prokopenko v. Ashcroft,
372 F.3d 941, 944 (8th Cir. 2004) (describing an INS Operating Policies and Procedures Memorandum
(OPPM) as an "internal agency memorandum," "doubtful" of conferring substantive legal benefits upon
aliens or binding the INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS
Operations Instruction (01) as an "internal directive not having the force and effect of law"); Ponce-Gonzelez
v. INS, 775 F.2d 1342, 1346-47 (5th Cir. 1985) (finding that Ols are "only internal guidelines" for INS
personnel, and that an apparent INS violation of an 01 requiring investigation of an alien's eligibility for
statutory relief from deportation was at worst "inaction not misconduct").
Therefore, the Memorandum does not create any substantive rights in the petitioner, and a director's failure to
follow the guidance in the Memorandum would not be grounds for a withdrawal of a decision.