dismissed L-1A Case: Freight Forwarding And Financial Services

PUBLIC COpy
identifyingdata deletedto
preventclearly unwarranted
invasionof personalprivacy
· U.S. Department of Homeland Security
20 Massachusetts Ave, N.W., Rm. 3000
Washington , DC 20529
U.S. Citizenship
and Immigration
Services .
File: EAC 07 008 50487 Office: VERMONT SERVICE CENTER Date: NQV 01 2007 ·
r,NRE: Petitioner:
Beneficiary :
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigrat ion
and Nationality Act , 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
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~a~, Chief
Administrative Appeals Office
www.uscis.gov
EAC 07 008 50487
Page 2
DISCUSSION: The Director, Vermont 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 employ the beneficiary 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. § 1l01(a)(15)(L). The petitioner, a corporation organized in the State of Florida that will engage in
scheduled freight forwarding, money transfers, and related services, seeks to employ the beneficiary as its
president and general managers. 1 The petitioner claims to be the subsidiary of Call Box Comunicaciones,
located in Bogota, Colombia. The petitioner seeks to employ the beneficiary in the United States to open a
new office.
The director denied the petition, concluding that the petitioner did not establish that (1) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity within one year of operation; or
(2) sufficient physical premises had been secured to house the new office.
The petitioner filed an appeal in response to the denial. On appeal, the petitioner submits a statement in
which it reasserts the beneficiary's qualifications, and contends that it supplied extensive documentation
which clearly established that the beneficiary would be operating in a primarily managerial or executive
capacity. It further asserts that since the initial filing, the petitioner acquired new offices in which to house
the U.S. business, and submits photographs and further documentation in support of this contention.
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.
1 It should be noted that, according to the Florida Department of State, Division of Corporations, the
petitioner has been administratively dissolved due to its failure to satisfy the state's annual report
requirements. Therefore, regardless of whether the petitioner's annual report issues in Florida can be easily
remedied or not, it raises the issue of the company's continued existence as a legal entity in the United States.
See § 607.1421, Fla. Stat. (2006).
EAC 07 008 50487
Page 3
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
(v) If the petition indicates that the beneficiary is coming to the United States as a manager or
executive.to open or to be employed in a new office in the United States, the petitioner shall
submit evidence that:
(A) Sufficientphysical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the proposed
employment involved executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval of the petition, will
support an executive or managerial position as defined in paragraphs (1)(1)(ii)(B) or (C) of this
section, supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure,and its fmancial goals;
(2) The size of the United States investment and the financial ability of the foreign
entity to remunerate the beneficiary and to commence doing business in the United
States; and
(3) The organizationalstructure of the foreign entity.
The first issue in this 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), defmes 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;
EAC 07 008 50487
Page 4
(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 10l(a)(44)(B) of the Act, 8 U.S.C. § llOl(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.
With the initial petition, the petitioner submitted a letter dated October 4, 2006 in which it discussed the
beneficiary's qualifications for the U.S. position. Specifically, the petitioner stated that the beneficiary had
been employed by the foreign parent company since September of 2004 as a commercial director. The
petitioner stated that the parent company specifically selected the beneficiary to open a new offIce in the
United States based on her qualifications and experience. The petitioner submitted a general overview of the
beneficiary's proposed duties, and submitted the following list outlining her position in further detail:
Directs the management of the organization.
Establishes the goals and policies ofthe organization.
Supervises and controls the work of other professional managerial employees.
Exercises discretion over the day-to-day operations of the organization.
EAC 07 008 50487
Page 5
Establish[es] and implement[s] departmental policies, goals, objectives, and procedures,
conferring with board members, organization officials, and staff members as necessary.
Assigns or delegates responsibilities to managers and staff as required.
Review[s] financial statements, activity reports, and other performance data to measure
productivity and goal achievement.
Plans, organizes, directs, and controls [the petitioner's] major functions and works through
other employees to achieve the organization's goals.
Exercises wide latitude in discretionary decision-making.
Receives only general supervision from the board of directors of [the foreign entity].
May perform other duties or tasks assigned.
The petitioner further stated that 80% of the beneficiary's time will be spent on the above-listed functions,
whereas the remaining 20% would be spent coordinating and communicating with the foreign entity through
reports.
The petitioner also submitted a proposed organizational chart, which demonstrated that as president, the
. beneficiary would oversee three managers: an administrative manager, an operations manager, and a
sales/purchase manager. The chart further demonstrated that these three managers would oversee their own
departments, with the administrative manager supervising the administrative department, the operations
manager overseeing an operations assistant, a store manager, and an unspecified number of sales
representatives, and the sales/purchase manager overseeing an unspecified number of account executives and
assistants. The petitioner claimed that by the end ofthe first year of operations, the beneficiary would oversee
six professional individuals.
The director issued a request for additional evidence on October 23, 2006. The request asked the petitioner to
submit additional evidence to establish that the petitioner will require the ·services of a bona-fide manager,
and specifically requested information regarding the manner in which the beneficiary would be relieved from
performing non-managerial, day-to-day tasks. The director further noted that based on the nature and scope.
of the proposed business, the organizational structure of the petitioner was not plausible, and gave the
petitioner an opportunity to respond to this observation.
In a response dated November 6, 2006, the petitioner responded to the director's request. The petitioner
restated that the petitioner intended to hire six employees within the first year of operations, and claimed that
the three managers (administrative, operations, and sales and purchase) would report directly to the
beneficiary. With regard to how the beneficiary would be relieved from performing non-qualifying duties,
the petitioner stated that it expected to have a gross income of $323,000 within its first year of operations. It
further stated that the beneficiary's duties would be limited to an upper-management level, and that she would
EAC 07 008 50487
Page 6
be responsible for hiring the employees who would engage in the day-to-day operations of the company. The
petitioner also provided an overview of the duties of the proposed managers.
On November 22, 2006, the director denied the petition. The director found that the evidence in the record
failed to establish that the beneficiary would be functioning in a primarily managerial or executive capacity
within one year of operation. Specifically, the director also concluded that based on the position descriptions
provided and the nature of the proposed business, the evidence did not support a finding that the beneficiary
would supervise and control the work of other supervisory, professional, or managerial employees who would
relieve.her from primarily performing non-qualifying duties. Noting that the proposed business did not seem
to warrant a bona-fide manager/executive in addition to subordinate managers, the director also found that the
petitioner had not demonstrated that the beneficiary would alternatively manage a function of the petitioner.
On appeal, the petitioner restates the beneficiary's proposed duties, and claims that in addition to supervising
other managerial and/or professional employees, she will also manage an essential function of the
organization. The petitioner further stated that while the organizational chart submitted was merely a
proposed organizational chart, it was indicative of the petitioner's plan to first hire clerical workers and then
expand to include additional managerial and/or professional personnel. Finally, the petitioner claims that
within one year, it planned "to have the people, the resources, and the technology to get our job done.across
the designated area of operations," and thus would require the services of a bona-fide manager.
Upon review, the petitioner's assertions are not persuasive. Whether the beneficiary will be a managerial or
executive employee turns on whether the petitioner has sustained its burden of proving that her duties will be
"primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. In this case, the
petitioner asserts that the .beneficiary is a qualified manager or executive by virtue of her position title,
experience abroad, and associated duties. However, the description of duties provided is vague and fails to
specify the exact nature of the claimed managerial or executive 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), afJ'd, 905 F.2d 41 (2d. Cir. 1990).
The description of the beneficiary's proposed duties, provided in the initial letter of support dated October 4,
2006, is vague and merely paraphrases the regulatory definitions. Specifically, the petitioner lists "directs the
management of the organization," "establishes the goals and policies of the organization," and -"exercises
wide latitude in discretionary decision-making" among the beneficiary's duties, which are direct quotes from
the statutory definition of executive capacity. Furthermore, the duties identified as "supervises and controls
the work of other professional managerial employees," and "exercises discretion over the day-to-day
operations of the organization"quote verbatim the statutory definition of managerial capacity. Conclusory
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language
of the statute or regulations does not satisfy the.petitioner's burden of proof. Id. at 1108; Avyr Associates, Inc.
v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Reciting the beneficiary's vague job responsibilities or
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the
beneficiary's daily job duties. The petitioner has failed to answer a critical question in this case: What does
the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108.
EAC 07 008 50487
Page 7
In addition to its failure to provide. a detailed overview of the beneficiary's actual duties, the petitioner has
submitted no information to establish the percentage of time the beneficiary will perform the claimed
managerial or executive duties. It has been noted in the record that the petitioner intended to hire six people
in the next year, four of which possess managerial titles. Other than on appeal, where the petitioner claims
that it will first hire clerical staff and then hire managers, there is no mention in the record of any proposed
secretarial or administrative staff positions. Aside from the operations assistant, whose position is not clearly
discernable, the organizational chart identifies no proposed staff positions dedicated to the day-to-day
operational tasks of the petitioning enterprise. Collectively, as noted by the director, this brings into question
how much of the beneficiary's time can actually be devoted to managerial or executive duties. As stated in
the statute, the beneficiary must be primarily performing duties that are managerial or executive. See sections
101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner bears the burden of documenting what portion
of the beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non­
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these
percentages, the record does not demonstrate that the beneficiary will function primarily as a manager or
executive within one year of the petition's approval.
In the absence of a clearly-stated hiring plan involving staff members devoted to handling the non-managerial
tasks of the business, the director examined in the alternative whether the beneficiary would be managing an
essential function of the organization. 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, 8 U.S.C.
§ 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner
claims that the beneficiary is rrianaging an essential function, the petitioner must furnish a written job offer
that clearly describes the duties to be performed, 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. 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. An employee who primarily performs the tasks necessary to produce a product
or to provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v.
INS., 67 F.3q 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988)). Despite the petitioner's claim on appeal that the
beneficiary does in fact manage an essential function, the petitioner has provided no such evidence.
In this matter, the proposed position of the beneficiary is president and general manager of a
newly-incorporated entity in the United States that currently employs no staff. The petitioner has not
demonstrated that the beneficiary, as president and general manager, will be primarily supervising a
subordinate staff of professional, managerial, or supervisory personnel. See section 101(a)(44)(A)(ii) of the
Act. While the organizational chart indicates that the titles of the beneficiary's proposed subordinates .are in
fact professional and/or managerial, the absence of proposed clerical or administrative positions suggests that
while these employees may possess managerial titles, they will nonetheless be performing non-qualifying
duties. As a result of this discrepancy, the petitioner has also failed to establish that it will employ a staff that
will relieve the beneficiary from performing non-qualifying duties so that the beneficiary may primarily
engage in managerial or executive duties. Further, regardless of the beneficiary's position title, the record is
EAC 07 008 50487
Page 8
not persuasive that the beneficiary will function at a senior level within an organizational hierarchy. Even
though the enterprise is in a preliminary stage of organizational development, the petitioner is not relieved
from meeting the statutory requirements.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of·
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 2l4.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties. Based on the limited documentation
furnished, it cannot be found that the beneficiary will be employed primarily in a qualifying managerial or
executive capacity within one year of the petition's approval. For this reason, the petition may not be
approved.
The second issue in this matter is whether the petitioner secured sufficient physical premises to house the new
entity as required by 8 C.F.R. § 214.2(l)(3)(v)(A). With the initial petition, the petitioner submitted a copy of
its commercial lease agreement dated September 18, 2006. The lease did not specify the size of the space the
petitioner had rented, and merely stated that the petitioner leased "a portion" of the premises. Noting that the
petitioner had failed to submit photographs of the interior and exterior of the building, the director requested
this evidence in the request for evidence dated October 23,2006.
In a response dated November 6, 2006, the petitioner submitted the requested evidence. Specifically, the
petitioner submitted four photographs: two photos of the interior and two photos of the exterior of the leased
premises.
On November 22,2007, the director denied the petition. Specifically, the director noted that the photographs
did not depict the nature of the petitioner's business, and failed to demonstrate that the petitioner was actually
conducting business. The director noted that no business signs were visible for the petitioner or any other
entities housed in the vicinity, and thus it was unclear what type of businesses and/or services were available
or actually being conducted. The director concluded that this lack of evidence, coupled with the petitioner's
lease, which failed to state the amount of square footage included in the leased premises, was insufficient to
demonstrate that sufficient physical premises had been secured.
On appeal, the petitioner indicated that the photos and lease submitted with the initial petition represented the
premises the petitioner had originally intended to use. It claimed, however, that since the initial petition was
filed, it had moved to another location where its U.S. office was currently located. In support of this
contention, the petitioner submits on appeal a lease agreement dated November 1, 2006 along with pictures of
the newly-acquired premises.
EAC 07 008 50487
Page 9·
Upon review, the AAO cannot conclude that sufficient physical premises had been acquired as required by 8
C.F.R. § 214:2(l)(3)(v)(A). The premises located at 1500 N.W. 128 Drive, which had been leased by the
petitioner as of 'September 18, 2006, were deemed unacceptable by the director by virtue of the lack of
evidence showing adequate space, machinery, and facilities for the claimed and proposed business operations
of the petitioner. Upon review of the photographs submitted in response to the request for evidence, the AAO
concurs with the director's finding, The factthat the lease fails to specify the amount of square footage leased
by the petitioner especially renders the petitioner's claim unacceptable.
Although the petitioner submits new evidence on appeal of a newly-acquired premises and photographs
supporting the claim that business is being conducted at this location, the petitioner fails to overcome the
basis for the denial. The petition in this matter was filed on October 10,2006. The newly-leased premises
were not secured until November 1, 2006, approximately three weeks after the filing of the petition. 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).
The regulations clearly require the petitioner to have secured sufficient physical premises at the time of the
petition's filing. In this matter, the petitioner had not satisfied this requirement. For this additional reason,
the petition may not be approved.
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 1025, 1043 (B.D. Cal. 2001), ajj'd. 345 F.3d 683
(9th Cir. 2003).
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.