dismissed L-1A Case: Furniture Import And Distribution

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U.S. Department of Homeland Security
20 Mass Ave. N.W., Room 3000 .
Washington, DC 20529 .
U.S. Citizenship
and Immigration
Services .
File: EAC 03 10950910 Office: VERMONT SERVICE CENTER
INRE: .Petitioner:
'. Beneficiary:
Petition: Petition for a Nonimmigrant WbrkerPursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(1 5)(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. ;'.
~~hief"~
Administrative Appeals Office
www.uscis.gov
.1 •
EAC 03 10950910
·Page2
DISCUSSION: The Director, Vermont SerVice Center, denied the petition for a nonimmigrant visa. The
petitioner subsequently filed a motion to reopen and reconsider with the service center. The director granted
the motion, but determined that the grounds for denial had not be~n overcome and affirmed the previous'
decision denying the petition. 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 president/chief
executive 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 is a corporation
organized in the State of New Jersey that is engaged in the import and wholesale distribution offumiture and
curio items. The petitioner claims that it is the subsidiary 0 , located in
Chandigargh, India. The beneficiary was initially granted a one-year period of stay to open a new office in
the United States and, subsequently, a two-year 'extension of her L-1 'status.',. The petitioner now seeks to
extend the beneficiary's stay for an additional three years.
On July 30, 2003, the director denied the petition concluding that the record does not demonstrate that the
beneficiary would be employed in the United States in' a primarily managerial or ~xecutive capacity.
Specifically, the director noted that there appeared to be no personnel to perform the sales and service
functions of the U.S. entity and that the petitioner failed to provide a breakdown of the number of hours per. . ,"
, dury performed as requested ..
In a motion to reopen and reconsider, counsel for the petitioner offered an explanation for the small size of the
petitioner's staff and indicated that the petitioner did provide a breakdown of the employees' job duties by
hours per week in response to the director's request for further evidence. Counsel indicated' in his brief that
additional e';idence was included to support his assertions; however, there is no additional evidence attached
to counsel's brief in the record. "
On April 14,2004, the director issued a decision granting counsel's motion.to reopen and· reconsider, but
affirming the previous denial of the peti~ion. The director noted that no additional evidence appeared to 'have
.been submitted, and counsel's assertions alone, without supporting evidence, are insufficient for meeting,the
petitioner's burden of proof in these proceedings.
In appealing the director's April 14, 2004 decision, counsel for the petitioner asserts that the petitioner in fact
did submit further evidence to support counsel's arguments in the motion; counsel provides on appeal copies
, of the evidence 'that was purportedly submitted with the motion. Counsel also states that contrary to the
director's statement in the earlier decision, the petitioner did in fact provide a breakdown of the number of
hours devoted to each of the employees' duties on a weekly basis as requested. Counsel further asserts that
,the director erred in concluding that the beneficiary would ~ot be employed in the United States in a primarily
managerial or executive capacity.
At the outset, the MO notes that at the time the director issued his deCision in response to the petitioner's
motion to reopen and reconsider, the record did not contain the additIonal evidence to which counsel referred. .,
EAc0310950910
Page 3
in his motion.] 'Therefore, the director did not err in st~ting in his Apri1'14, 2004 decision that counsel's
assertions alone, without supporting documentary evidence, are insufficient for meeting the burden of proof in
thes~'proceedings. Regardless, even considering the additional evidence, submitted on appeal, the petitioner
fail~d to establish it would employ the beneficiary in a primarily managerial or executive position. .
To e'stablish eligibility for the L-1 nonilnmigrant visa classification, the petitIoner must' meet the criteria
outlin~d in sectionI01(a)(1-5)(L) of the Act. Specifically, a qualifYing organization must have:employed the
beneficiary 'in a qualifYingmanagerial or executive capacity, or ina specialized knowledge capacity, for one
continuous year within three years' preceding the beneficiary's application fof· 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
i ".'
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 ~ill employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.
(ii) Evidence thatthe alien will be employed in an executive, managerial, or specialized
knowledge capacity, including·a detailed description of the services to.be perfonned.
(iii) Evidence that the alien h~sat least one continuous year of full time employmertt
abroad with a qualifYing organization within the three years preceding the filil,1g of .
the petition.' , ., '
(iv) Evidence that the alien's prior yearof employment abroad was i? a position thatwas '
'irianagerial, executive or involved specialized knowledge and thai 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'lleed not be the:
same work which the allen performed abroad.
At issue in the present matter is whether the be~efi~iary would be employed by the U~ited"States entity in a
primarily managerial or executive capacity. '
Section 101 (a)(44)(A) of the Act, 8 U.S.C.§ 1l01(a)(44)(A), defines the, 'term "~anagerial capacity"as an
assignment within an organization in which the employee primarily:
',' (i) manages the organization, or a departlnent, subdivision, function,orcomponent Of
the organization;
] The AAO acknowledges that counsel subsequently':submitted copies of such do~umentation along with the
appeal presently before the AAO. '
EAC03 10950910
Page 4
(ii) supervises and controls the work of other supervi~ory, 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 ~r with respectto 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.§ 11'01(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 atidpolicies oftI1e organization, component, or function;
(iii) -exerclses 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 a letter dated February 14, 2003 accompanying the initial petition, the petitioner described the b.eneficiary's
job duties as follows:
. • Enter into contact [sic] with various vendors ... for steady supply of pre-identified goods
for wholesale, sales to franchisees and retailers in the United States.
• Enter into-contract _with franchisees, who wish to market goods imported, -and ''finished''
by the [petitionerl
- •. -Formulate plans a~d methods of executio~ of launching a -retail division, for internet
based sales and show room based sales of the [petitioner)'s goods....
•. Make Executive level decisions that would have far reaching ramifications to the on­
going -success of the. [petitioner], i.e., in continuing to hire and where need to fire
employees, and setting up business reiationships with other Professionals (whose
expertise would be needed for [the] running of a successful business), such as Attorneys,
Bankers, Certified Public Accountants, Real Estate Agents, Customs & Import Brokers,
, -
"" I
. EAC 0310950910
Page 5
"I ,
Direct Mail Promoters, ("Val-Pak"), Freight Forwarders, Contractors for, among others
[sic] polishing and' "fmislling" of furniture imported from abroad. The above m~ntioned
·entities/organizations/firms are all professional set-ups, with whom' the Beneficiary will
be ~ssociating and will require various degree of supervision/control to be exercIsed by
her.
• Selecting properties/real estate in various parts. of the United States, based on Market
research provided by independent consultants, for setting up'ofretail show rooms ....
• The Beneficiary will ,be involved in the selectIon of franchisees and agents, throughout
the United' States, so. as to create outlets for the goods imported/finished .by the'
[petitioner].
• The Beneficiary has been instrumental in formulating the marketing of the goods
"imported by the [petitioner] and to this end she has used different methodology, including
mass mailings ... anddi~tribution of flyers. . . . . .","
•. The Benefic'iary. has been primarily respo~sible for the [petitioner] qeing able to enter
into contacts with reputable U.S. organizations. :" .
On March 24, 2003, the director requested additional evidence. Among other things, the director requested
(1) a comprehensive desbnption of the beneficiary's duties, indicating how they have been and will be
managerial or executive in nature; (2) a list of tlw U.S. entity's employees including their names, position
titles, position descriptions, and breakdown of the mimber of hours devoted by each .employee, induding the
beneficiary, to each job duty on a weekly basis; and (3) fot the year 2002, copies of the U.S. entity's federal
income tax return and Internal Revenue Service (IRS) Forms W-2, W-3,' 1999, 1096, and 941 (for the third
and fourth. quarter): The dire~tor also requested a number of other documents relating to th~ conduct of the
petitioner's busin'~ss in the United States 'and its relationship with the foreign e~tity. . .
. . , ..
The petitioner respoIl;dedto the request with the following description of the beneficiary's job duties:
.. 'Executive Functions
'.' '
• Directing Manageme I1t of the 'organization including[:] establishing of goals, policies and.'
set standards, exercising wide latitude in discretionary decision making, maintaining
contact with the sister organization in India, and its Board of Directors, its Executives,
, . agents and e~ployees in various countries, through vanous means, including,but not
limited [to] telephone' ~onversations, E-mail, correspondence, and face to face meetings,
(approx lOhours) .
.• . Plan; develop, establish goals/objectives in accordanc~ with/to the Directives of the
Board of Directors, (approx 3 hours)[.].·
• ',Discussing? with the Chief Financial Officer, and outside consultants, inClllding the
·organization[']s CPA, and outside Financial Planners on planning of business objectives
·and d~velopi~g of·' organizational policies' including marketing strategies, financial
planning and setting up of financial targets and sales goals based on projected reve~ues
·and expenSes.' Formu~ating plans and media for advertising the organization[']s produCts,
· EAC 03 10950910
Page 6 .
. ,
based on available revenues and finan~ial targets. Identifyin.g international an,d domestic
. suppliers for purchase of finished ancj. semi-finished goods. (approx 7 hours).
Managerial Functions ..'
;
• Assigning ofgoa1s and objectives to the different Managers, including the Marketing
Manag~r and the Chief Financial Officer of the company, (approx 3 hour[s)).
• Discussio~s with copipany officers who plan business objectives, <:ievelopsorganizational
policies to co-ordiriate functions and operations between divisions and departments,
(approx 8 hours),
• Judge performance/evaluate the potential of Managerial staff including the Chief
Financial Officer, ... the Marketing Manager, and those non-employees who provide
professional services, including the CPA" the lawyers, and the financial pla'r1l1ers,(app~ox
4 hours). ' .,
• Plan and, deve1opindustrial, labor; and public relations with corporate, ~nd retail
customers, employees, stockholders and public, and ensure that they are inconformity .
. with the objectives and goals of the organization, (approx 1 hout).
• Deal 'WIth financial institutions, -legal matters/lawyers, GPA[s], and financial planners,
(approx 2 hours).., . .' '. ..' ,
.• ' Deal with major issues rarising out of ShipPIng/insurance claims, needs, (approx1 hour).
• .Preside over Board of Directors Meeting(s), (approxl hour). . ,
The petitioner also submitted job descriptions faI-four other employees in addition to the beneficiary, namely
· a chief financial officer, a marketil1g man~ger, an accountant, and a warehouse manager. ... The petitioner
provided copies of Forms W-2filed for the year 2002 for all five of its employees; Forms 1099~MISC for the
year 2002 for six individuals; and the company's2002 Form W-3, Form.s 1096, and Forms 941 (f~r the third
and fourth quarter). In lieu ofit~' 2002 federal income tax return, the petitioner submitted a copyofIRSForm
7004,. Application for Automatic Extension of Time to File Corporate Income' Tax Retuni.: ' There a~e' no
, copies of the petitioner's corporate income tax return for anyyear in the record. . ,
On July 30, 2003, the director denied the petition concluding that the 'petitioner failed to establish that the
beneficiary would be employed in the United States in a primarily managerial or executive capacity.
Specifically, 'the director noted that there appeared to be no non-manageri'al personnel to perform the sale~'
and service functions· of the U.S. entity, thus it seems likely that the beneficiary would be involved in
performing these dutie.s. Also, the director noted that the petitioner failed to provide' a breakdown of the
number of hours.per duty performed as requested. The director further remarked that despite the beneficiary's
executive tItle, the. Citizenship and Immigration, Service~ (CIS) is not persuaded that in an organization the
· size and nature of the petitioner's, the benefi,ciarywould be engaged in primarily executive ormanagerial
duties. Rather, the direCtor observed, it appears likely that she would be.engaged primarily in the day-to~day
operations involved in: providing a service or selling the company's products. The director further found that
the petitioner has not shown that the beneficiary, would function at a senior level within the organizational, .
hie~archy other than in:title, or that the beneficiary will be involved in the supervision and control ,of the work
" .
EAC 03 10950910
. Page 7
of other supervisory, prOfessional, or managerial employees who would relieve her from performing the
services of the corporation.
In his motion to reopen and reconsider, the petitioner's counsel asserted that there was no sales staff because
.the petItioner is a wholesale distributor and the business is entirely generated by/through the Internet.
Counsel further pointed out that a breakdown of the employees' job duties by hours per week was in fact
provided in response to the director's request for further evidence. While counsel's brief makes reference to
various documents that purportedly support his assertions, there did not appear to be any further evidence'
, ' submitted with the brief. . .
On April 14, 2004, the director, granted counsel's motion to reopen and reconsider but affirmed the previous
denial of the petition. The director noted that ,there was no additional evidence was submitted with the
motion, nor did any appear to be forthcoming. The director concluded that counsel's 1:i'sseitionsalone, without'
s)lpporting evidence, are'insufficient for meeting the petitioner's burden ofproof inthese proceedings.
On appeal following the April 14, 2004 decision, counsel for the petitioner ass~rtsthat the· petitioner in fact
did submit further evidence to support counsel's arguments in the motion. Counsel provides ~opies of the
evidence that was purportedly submitted with the motion. Counsel also states that contrary to the director's
statement in the initial decision, the petitioner did in factprovide a breakdown of the number of hours devoted
to each of the employees' duties on a weekly basIs' as requested. Counsel further asserts that the job
descriptions of the petitioner's employees clearly show that the beneficiary's functions are' executive;
managerial and supervisory, and there, is no basis for the director's presumption that the beneficiary likely
would be engaged in the non-managerial, day-to-day operations of the organization. Counsel argue's that
since CIS had approved a two-year extension of the beneficiary's ,L-1 status prior to the current petition
extension and as the beneficiary is continuing in the sam'e position and conti:D.uesto perform the same j~b
duties as before; a conclusion at this time that the beneficiary's duties are not managerial/executive is clearly
eiTQneous. Counsel' further contests the director's remark regarding the size Of the petitioner's staff. 'Counsel'
maintains thafthe very nature of the petitioner's operatiop.s eliminates the requirem~nt of a salesJorce a~d the
size' of a company or the number of employees supervised is not the sole determining factor of eligibility for
L-l statilsunder the Act.
At the outset, the MO acknowledges that, ascounsel.stated, the petitioner did submita breakdown of the
number of hours per duty performed for each of its employees in response to the director's request. Therefore,
the director's statement that the petitioner had failed to provide such information is .withdrawn.
,
Notwithstanding the foregoing, the AAO finds that the record i~ insufficient to. demonstrate' that the
Qeneficiary"would be employed in the U.S. in'a primari~y managerial or exec~tive capacity.
,.When examining the,executive or managerial capac~tyof the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 c.P.R. § 2l4.2(1)(3)(ii). The petitioner's description Qfthe job
duties must clearlydescnbe the duties to be performed by the beneficiary and indicate whether such duti~s are
either III an executive or managerial capacity. Id. The petitioner must,' specifically state whether the
EAC 03 10950910
Page 8
., '.
b~neficiary is primarily employed ina managerial or executive capacity. A ~endiciary may not claim to be
· employed asa hybrid "executive/map.ager"'and rely on.partial sections of the two statutory definitions. .
ill this instance, the' petitioner provided two different job descriptions for the beneficiary, one with the initial
petition and one upon tpe director's request· for further evi~en~e. 'Neither job description satisfactorily·
demonstrates that the beneficiary .would be el11plo~ed by the petiti9ner in a primarily managerial or executive
capacity. '. . .
:. First, in a letter submitte~ with the initial petition in February 2003, the petitioner described the beneficiary's
tasks as "entering into contraCts with vendors" and "franchisees," "formulating plans and methodspf.
launching a retail division,""mak[ ing] executive level decisions" related to hiring imd firing employees and .
setting up business relationships with other professionals, "selecting properties/reai estate ... for setting .up of
retail showrooms," "selecting franchisees and agents," and "formulating the' marketing of the goods imported'
· by the,.petitioner." The AAO notes that tasks such as negotiating contracts with vendors and marketing,- , ". .
products are considered tasks that are necessary to provide a service or product; and as such; would not be
considered managerial or executive in nature. Since the petitioner.did not provide a breakdown of time spent_
on each of the beneficiary's job duties in the initial job descriptioIi, it cannot be determined how much 9fthe
beneficiary's time -is· spent on those potentially non-qualifying duties. If an employee _"primaiily" performs
tasks necessary to produce a product or to provide services, that employee is.not consi,dered to be "primarily"
employed in a managerial or executive capacity: See sections 101(a)(44)(A) and-(B) ofthe Act (requiring th.at
one "primarily" perform the enumerated managerial or exe~utive du;ties); see also Matter of Church
Scientology IntT, 19I&N be~. 593,604 (Comm. 1988).'
Subsequ~ntly; in a June 2003Te~ponse to the director's request for·a n:.ore detailed job description that breaks
down the beneficiary's week by"number of hours spent per duty, the petitioner provided a job description that
is substantially different from the one previously submitted. ill that response, the pe~~tioner claimed that the
beneficiary's position, is both managerial and executive and listed anew set of duties. which are divided into
executive functions and managerial functions, totaling 20. hours in each category. As previously noted, the
pe,titioner must specifica.lly state whether the be~eficiary is primarily einployed in a managerial or executive
capacity.._See 8 C.F.R. § 214.2(l)(3)(ii). A .beneficiary may not claim to be e~ployed as ':a .hybrid
· "executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner~hoos~s to
represent the,beneficiary as both an executive and amanager, it riulst ~stablish that the beneficiary meets each
of the four ,criteria' set forth in both the statutory definition for executive and the statutory definition for
manager: As such, assuming the beneficiary will in fact spend' 20 hours per week on managerial functions
and 20 hours per week on executive functions, she cannot be considered'-to be employed primarily in an '
executive or managerial position as exactly half of her time will be devoted to each '~etof functions with .
neither being the'majority of her job duties. Moreover, in this particular instance, the job duti~s as described·
fail to show that thebeneflCiary even meets the criteria set"forth in ~ither the statutory definition for executive-
·or that for manager.
The description Of the beneficiary's executive functIons merely paraphrases the statutory definition of
'- executive capacity' rather than providing a specific description of the beneficiary's duties. See section
· 101(a)(44)(A) of the Act, 8 U.S.C. § 11o1(a)(44)(A). For instance, the petitioner depicted the beneficiary as
'.'t.
EAC03 10950910
Page 9
. . . . '.
"directing the management of the organization, including .establishing of goals, policies arid set standards,
exercising wide latituqe in discretionary decision making; maintalning contact with the sister organization in
India and its Board of Dire,ctors." Conclusory assertions regarding the beneficiary's employment capacity that
. merely repeat the language of the' statute or regulations does not satisfy the petitioner's· burden of proof.
Fedin Bros. Co., Ltd. v. Sava, '724 F. Supp. 1103, 1108 (E.D:N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990);
Avyr Associates Inc. v.}!eissner, 1997 WL 188942 at *5 (S.D.N.Y.) .. ' ,
Similarly, the description of the beneficiary's managerial duties involve such vague phrases as "discussions
with company officers who pian business objectives," "develops organizational policies to co-ordinate
functions and operations 'between divisions and' departments', "deal with financial institutions; legal
matters/lawyers, CPA's [sic] and financial piaimers'" and "deal with major issues arising out of
Shipping/Insurance claims, needs." The petitioner does' not ehibo~ate upon what the" discussions," "business
objectives," "organizationiil policies," or "dealing with"financi~l or legal service providers entail. Reciting
the beneficiary's vague job responsibilities or broadly-cast business objectivesis not sufficient; the regulations
require a detailed description of the beneficiary's daily job duties. Specifics are clearly an important
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting
'. the deftIiitions would simply be a matter of ~eiteratingtheregulati9ns. ,Id.
Further, the petitioner failed to, explain why the two separate job de~criptions for the beneficiary provided
before and after the director's request for further evidence appear to describe two different sets of duties. It is
incu~bent upon the petitioner to re~olve any inconsi~tencies in the ~ecord by independent objective evidence.
Any attempt to explain or reconcile such inconsistenCies will not' suffice unless the petitioner submits
competent objective evide~ce pointing to where the truth lies. Matter oflio, 19 I&N DeC: 582, 591 ~92 (BIA
1988). Moreover, the purpoSe of the request for evidence is to elicit further information that clarifies whether
eligibility for the benefit sou'ght has been'established. 8C.F.R. § 103.2(b)(8). When responding to a.request , .
for evidence, a: petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the' organizational hierarchy:~r its associatedjob responsibilities.' The petitioner
must establish that the position offered to the beneficIary when the petition Was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire.Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978).
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather,
. . . I . " '. .
than seek approval of a petition that is not supported' by the facts .in the record. Finally, based on the .
information provided, the AAO cannot determine ~hat the beneficiary's exact duties are, nor can it determme .
the amount of time she actually spends on each q.uty; consequently,' it cannot be determined whether the
beneficiary primarily, perfomls managerial or executive d~ties, as' the legulations require. .See Champion
.World,Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL.i44470 (9th Cir: Juiy 30, 1991).
In addition, although the beneficiary is not requir~d to supervise personnel, if it is claiffied that her duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) .ofthe Act. Here,as discussed infra, the evidence -is not
sufficient 'to demonstrate that the beneficiary supervises employees who are supervisory,. professional, or
mamlgerial, as required by the Ac( . .
....
EAC 03 10950910
Page 10
· The petitioner claims tQutilize the services of a number of independent contractors whom the petitioner
· described generally as ."different tYPes of artisans" in response to the director's request for further evidence.
The petitioner submitted Forms 1099 for the year 2002 for six different individuals. However, the AAO notes
that three of the individuals on the Forms 1099 are actually described elsewhere as full-time employees of the
company. As previously noted, it is incumbent upon the petitioner to resolve any inconsistencies in the
record. by independent objective evidence. See Matter of Ho, 19 I~N Dec. at. 591-92. Moreover, the
petitio~er did not provide any detail regarding the type and extent of work or' services the claimed'·
independent contractors perform for the company. Without documentary evidence to support its statements,
· the petiti~ne~ does not meet its burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165
(Comm. 1998).
The petitioner does indicate that there are four employees working under the beneficiary -- the chief financial
officer, the marketing manager, the a~countant; and the warehouse manager. The AAO notes thatthe job
descripti~)lls the petifione~ submitted for its' staff indicate that the chief financial officer spends some of his
time supervising the work of the accountant. However, the record isinsufficient to show that the beneficiary's
other subordinate employees actuallysupeivise or manage other employees or otherwis~ function in a
supervisory or managerial capacity, despite their managerial' titles. The job description for the marketing
manager states that he "oversees the activities of the sales staff," among other things.. However, there is no
evidence in the record that the petitioner actually has a sales staff; in fact, counsel contends on appeal that
given the nature of the business, the petitioner does not have and does not need to have a sales staff.
Similarly, the warehouse manager is 'said to spend the bulk o(his time "hiring/using the' services of
independent contractors" to finish and transport the products but, as previously noted, there is nothing in the
record to show how the company actua.lly uses the independent contractors, such that it can be ascertained
that those individuals in fact work under the supervision of any of the beneficiary's subordinates. In all, the. , .
evidence is insuf~cient to show that the beneficiary supervises employees who function in a managerial or
supervisory capacity. The petitioner also has failed to provide any information relating to the educational and
professional background of the beneficiary's subordinate employees, or the qualifications required for their
jobs, such that it could be determin~d w~ether any of them are in fact employed in a professional ;capacity.
Given these deficiencies in the record, the AAO cannot conclud~ that the petitioner has demonstrated that the
· beneficiary's subordinate employees are supervisory,professional, ~~ manageria1,as required by. section
101(a)(44)(A)(ii) ofthe Act. ..
On appeal, counsel also contests' the director's remark regarding the size of the petitioner's staff. Counsel
argues that the size of a company or the number-of employees supervised is not the sole detehnining factor of
eligibility forL-1 status under the Act. . 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 § 101(a)(44)(C) of the Act, 8 V.S.c. § 1101(a)(44)(C). However, it is appropriate for CIS to·
.consider the' size of the petitioner in conjunctio~ with other relevant factors, such as the company's s~all
personnel size, the absence of employees who would perform the non-managet:ial or non-executive operations
<?fthe company, or a "shell compan:t that does not conduct business in a regular and continuous manner.
See, e.g., Systronics Corp. v. INS, 153 F. Supp: 2d 7, IS (D.D.C. 2001).. The size of a company may be
especially relevant when CIS notes discrepancies in the record and fails to believe thatthe facts asserted are
true.ld. In this instance, the petitioner has presented conflicting information regarding the existence of and/or
EAC0310950910
Page 11
:, .
need for a sales staff,within the Coinpany. On the one hand, the petitioner represented in the record that' the
marketing manager spends approximately 22 hours, more than half of his working hours, overseeing' and .
trouble shooting the activities of the saJes staff. On the other hand, in contending on appeal that the small size
of the company's staff should not matter, counsel maintains that the petitioner does not have a sales staff and
that the very nature of the petitioner's operations eliminates the requirement of a. sales force. These
conflicting claims have not been reconciled in the record. Again, it is incumbent upon the petitioner to
, resolve any inconsistencies in the reco~d by independent objective evidence.' Matter of Ho, 19 I&N Dec. at
591-92. Doubt cast· on any aspec;t of the petition~r's proof may, of course, lead to a reevaluation of the
reliabi~ity and sufficiency of the remai!lingevidenceofferedinsupportofthevisapetition.Id.
Finally, counsel contends that"CIS approved a previous,petition for extension that had been filed on behalf of
the beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other
nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same
unsupported 'and contr?dictory .,assertions ·that 'are contained in the current record, the' app'roval would
.constitute material and gross error on the. part of the director. The AAo is not requiTed to approve
applications Of p~titions where eligi!,ility has not been demonstrated, merely because of prior approvals that
may have be~n. erroneous. See, e.g. Matter of Church' Scientology International, 19 I&N Dec. at 597. It
would ,be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent.
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 48~ U.S. 1008 (1988).
Furthermore, the AAO's authority over the service:centers is comparable to the relationship between a court' ,
of appeals and 'a district court., Even if a service center,director had approved the nonimmigral1t petitions on
behalf of the beneficiary, the AAo would not be bound to follow the contradictory decisions of a service
center. Louisiana Philharrtlonic Orchestra v. INS, 2000 'WL 282785 (E.D. La:), affd, 248 F.3d 1139 (5th Cir:
2001),'cert, denied, 122 S.Ct;51 (2001).' . .
In light of theforegoi~g, the AAO concludes thatth¢ petitioner has failed to establish that the beneficiary
would be, employed, in the U.S. in a primarily managerial or exe~utive capacity, as required by 8 C.F.R. §,
214.2(l)(3)(ii). ...
Beyond the decisiQnof the director, th~ AAO finds that.,therecord is insufficient to establish that a qualifying ,
relationship exists between the foreign and U.S. entities as required under 8 C.F.R. ,§ 214.2(l)(3)(i). The
regulation's and case law confirm that ownership'a~dcontrol are the fa<;tors'that must be examined in
'.' dete~il)ing whether a qualifying relationship exists between the. U.S. and foreign e~tities for purposes of this
visa classification. Matter of Church Scientology International; 19 I&N Dec. at 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter oj Hughes, 18 I&N Dec: 289 (Comm.
. 1982).' Ownership refers to the. d'irect or indirect leg~l· right of possession of the ass.etsof 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, 19I&N
, Dec. at 595."· . . ,
Here, the' petitioner has provided conflicting information regarding the o,wnership and control of the U.S.
entity. On the Form 1-129, the petitioner disclosed that the U.S. company is 10% owned by the foreign entity.
In'the letter dated February 14,2003 accompanying ,the initIal petition, however, the petitioner stated.that the
, EAC 03 10950910
Page 12"
.~ ..
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foreign entIty and its "associate' company" each owns,50% ofthe U,S. entity. 'The'petitione~ failed to chirifY
or reconcile these conflicting statements in the record., Again, it is incumbent upon the petitioner to resolve,
any inconsistencies in the record by independent objective' evidence. See Matter ofRo, 19 I&N Dec. at 591'­
92. The petitioner did submit copies of two stock certiBcatesfor 100share~ each in the U.S. entity, issued to
the foreign 'entity and an entity called Unitech BUSIness Consultant, and a copy of the U.S.entity"s sto~k
ledger documenting'these share issuances. However, 'without further evidence, thesedocu~ents alone are not
sufficient evidence to determine whether a stockholder maintains ownership and control of a'corporate entity,
, especially in view of the conflicting statements made regarding the 'own€rship ~f the U.S. :entity. 'The. .. ., " .
corporate bylaws, and the minutes' of relevant annual shareholder ~eetin&s must also be examined to
, determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent
percentagt: ownership and'jts effect on corporate control. Additionally, a' petitioning co~pany must disclose
all agreements relatirig to the voting of shares, the distrib~tlon 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., supm, Without full disclosure of all relev<!-nt documents, CIS is ,unable to determine the elements of
ownersh{pand control'ofthe U.S. entity. Consequently, ,the claimed qualifying r~lationship between.the U.S.
,and foreign entities ,cannot·be ascertained.
• '. , .. ," I . .
" /'
An application or petition that f~ils to comply wit~ th~' technical r~quitements of the law may be denied by
the AAO even if the Service Center does not identify all of the gro~rids fOr deriial in the initi,aldecision. See
, 'Spencer Enterprises, Inc.v. United States, 229 F. Supp. 2d 1025,1043 (E.D. CaL i001), affd, 345 F.3d 683"
,.-(9th Ci~. 2003); see also Dory. iNs, 891 F.2d 997; ~002 h. 9 (20 CiT. 19$9) (noting tliat the AAO reviews
appeals on ade novobasis).: .' " ' '.
: The petition will be denied, for the above stated reasons, with each considered as an independent and
alte~ative b~sis for denial. When' the AAO denies a petition on multi;le alternative gr~unds, a plaintiff can '
succeed on a cha}Jengeonly if it shows that the MO,abused it discret,ion with respect to all of the· AAO's '
, enumerated grounds. See Spencer Enterprises,In,c. v,,United States.,229 F. Supp. 2d at 1043.
Ill,visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 ofth~ Act, 8 U.S.c,. § 1361. Here, that b~rden has not been met: Acco~dingly, the
director's decision will be affirmed and the petition w.ill be denied.
ORDER,' 'The a~peal i,sdisrnissed.
... .