dismissed L-1A Case: Furniture Wholesale

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
rUBLICCOllY
u.s.Citizenship
and Immigration
Services
File: EAC 06 243 52064
IN RE: Petitioner:
Beneficiary:
Office: VERMONT SERVICE CENTER Date:
FEB 282008
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
ROb~ief
Administrative Appeals Office
www.uscis.gov
EAC 06 243 52064
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 visa petition seeking to employ the beneficiary as its executive
designer as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(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 Commonwealth of Pennsylvania and is allegedly a furniture wholesaler.
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 capacity.
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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive or manager.
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 (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
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.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
EAC 06 243 52064
Page 3
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform 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 petitioner may not claim that a beneficiary will 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.
The foreign entity describes the beneficiary's proposed duties in a letter dated August 15, 2006 as follows:
This position includes interior design consultant work in US with European taste, such as
EAC 06 243 52064
Page 4
commercial and corporate design, and residential design. This position also includes the
training of sales representatives and decorating consultants engaged exclusively in providing
aesthetic services associated with interior spaces.
The petitioner also indicated in the Form 1-129 that it currently employs five people.
On October 25, 2006, the director requested additional evidence. The director requested, inter alia, a more
detailed description of the beneficiary's proposed duties.
In response, the foreign employer submitted a letter dated November 8, 2006 in which the beneficiary's
proposed duties are described as follows:
1. The basic goal for [the beneficiary] in US Company is exploration the field on
American Market for Kitchen Sets for BALTA Principal partner BLACK RED
WHITE manufacturer [citation omitted]. [The foreign entity] and [the petitioner are]
affiliated with BLACK RED WHITE S.A. (Poland) and main shareholder of the US
Company is owner of BLACK RED WHITE S.A. (Poland) and the president of this
company. [The beneficiary] has a professional knowledge in PLANET
MILLENNIUM Software [website omitted]. This software is developed for
projecting the kitchen rooms and design of leaving space. Now the manufacturer
makes the special endorsements for some lines of kitchen cabinets, takes into
consideration the US requirements (sizes, appliances, accessories). The
acknowledgement US employees and manage them with PLANIT [sic]
MILLENNIUM Software is one of the duties of [the beneficiary]. Also need to be
making some of correction of this software.
2. The affiliated companies has the common corporate software SHOP 4 [website
omitted]. [The beneficiary] educated to train employees in US to start using this
software and manage them during education period. This software will change the
old Norton Software BAZA.
3. Latvian and Poland marker requires new ideas and technologies. [The beneficiary]
should take the retail and wholesale methods in US and with mentality correction
insert it to BALTA SIA and partner companies' work.
4. After period of the adaptation [the beneficiary] will be manage the new BLACK
RED WHITE DESIGN department. The main duties will be leading the employees
or contractors and control of their activity. The goal of this department is to collect
the orders for individual projects using the product of the BLACK RED WHITE
Company. The proposed activity is similar like for BALTA SIA Company (Latvia).
On May 18, 2007, the director denied the petition. The director concluded 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 will perform primarily qualifying duties.
Upon review, the petitioner's assertions are not persuasive.
EAC 06 243 52064
Page 5
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 perfonned by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the
position entail executive responsibilities, while other duties are managerial. As explained above, a petitioner
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a
vague and largely unintelligible job description which fails to sufficiently describe what the beneficiary will
do on a day-to-day basis. For example, the petitioner asserts that the beneficiary's "basic goal" will be to
explore the American market as it pertains to "kitchen sets" apparently manufactured and/or distributed by the
petitioning organization. The petitioner also asserts that the beneficiary will manage the design department.
However, the petitioner does not explain what the beneficiary will do in "exploring" the American market and
fails to provide any details regarding what, exactly, she will to in "managing" the design department.
Furthennore, the petitioner failed to explain whom, if anyone, the beneficiary will supervise on a daily basis
as the "design executive." The fact that the petitioner has given the beneficiary a managerial or executive title
and has prepared a vague job description which includes inflated job duties does not establish that the
beneficiary will actually perfonn 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, even though the job description is largely unintelligible, it appears that many of the duties ascribed
to the beneficiary will be non-qualifying administrative or operational tasks which will not rise to the level of
being managerial or executive in nature. For example, it appears that the beneficiary will provide software
training and will perform design and software related services. However, such duties are non-qualifying
administrative or operational tasks. Furthennore, as the petitioner has failed to provide any specific
information regarding the beneficiary's claimed subordinate employees and contractors, the petitioner has
failed to establish that these subordinate employees will relieve the beneficiary from having to primarily
perform non-qualifying duties. Moreover, as these subordinate employees cannot be deemed to be
supervisory, managerial, or professional (see infra), the supervisory duties ascribed to the beneficiary will
also be non-qualifying. As such, it has not been established that the beneficiary will be "primarily" employed
as a manager or an executive. An employee who "primarily" perfonns the tasks necessary to produce a
product or to provide services is not considered to be "primarily" employed in a managerial or executive
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N
Dec. 593, 604 (Corom. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
EAC 06 24352064
Page 6
As indicated above, the petitioner failed to reveal the identities of the beneficiary's claimed subordinates or to
describe the duties of these workers. Absent specific job descriptions for these purported subordinates, it
cannot be determined whether they are managerial, supervisory, or professional employees. In view of the
above, the beneficiary would appear to be, at most, a first-line supervisor of non-professional workers, the
provider of actual services, or a combination of both. A managerial employee must have authority over day­
to-day.operations beyond the level normally vested in a first-line supervisor, unless the supervised employees
are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N
Dec. at 604. Therefore, the petitioner has not established that the beneficiary will be employed primarily in a
managerial capacity.!
Similarly, the petitioner has failed to establish 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
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. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
!While the petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. 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. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, 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. See 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. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained
above, the record establishes that the beneficiary will likely be a first-line supervisor of non-professional
employees and/or will perform non-qualifying operational or administrative tasks. Absent a clear and
credible breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine
what proportion of her duties will be managerial, nor can it deduce whether the beneficiary will primarily
perform the duties of a function manager. See IKEA US, Inc. v. U.s. Dept. ofJustice, 48 F. Supp. 2d 22,24
(D.D.C. 1999).
EAC 06243 52064
Page 7
beneficiary is so vague and unintelligible that the AAO cannot deduce what the beneficiary will do on a day­
to-day basis. Moreover, as explained above, it appears that the beneficiary will be primarily employed as a
first-line supervisor and will perform the tasks necessary to produce a product or to provide a service.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive
capacity.
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed
that Citizenship and Immigration Services (CIS) "may properly consider an organization's small size as one
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. Us.
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of
Transkei v. INS, 923 F.2d 175,178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is
appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors,
such as a company's small personnel size, the absence of employees who would perform the non-managerial
or non-executive operations of the company, or a "shell company" that does not conduct business in a regular
and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size ofa
company may be especially relevant when CIS notes discrepancies in the record and fails to believe that the
facts asserted are true. Id.
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or
executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. §§
214.2(1)(3)(iii), (iv), and (v)(B).
The foreign employer described the beneficiary's duties abroad in a letter dated August 15, 2006 as follows:
This position comprises job primarily engaged in making the decision in planning, designing,
and administering projects in interior spaces to meet the physical and aesthetic needs of
people using them, taking into considering building codes, health and safety regulations,
traffic patterns and floor planning, mechanical and electrical needs, and interior fittings and
furniture.
The foreign employer further described the beneficiary's duties abroad in a letter dated November 8, 2006.
As this letter is in the record, this description will not be repeated here. Generally, the beneficiary is
described as providing design and software training services for the foreign employer. Importantly, the
petitioner does not provide any specific information regarding the job duties of the beneficiary's purported
subordinate workers.
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties
abroad. Specifics are clearly an important indication of whether a beneficiary's duties were primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
EAC 06 243 52064
Page 8
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, ajJ'd, 905 F.2d 41. Furthermore, the
petitioner failed to describe the duties of the beneficiary's purported subordinates abroad, if any. Absent
detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is impossible for
CIS to discern whether the beneficiary was "primarily" engaged in performing managerial or executive duties
abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International,
19 I&N Dec. at 604.
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or
executive capacity for one continuous year in the three years preceding the filing of the petition, and the
petition may not be approved for this reason.
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are
qualifying organizations.
The regulation at 8 C.P.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations." See also 8 C.F.R. § 214.2(l)(l4)(ii)(A). Title 8 C.F.R. § 214.2(i)(l)(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)(l )(ii) of this section" and "is or will be doing business." "Doing business" is defined in part as "the
regular, systematic, and continuous provision of goods and/or services."
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; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 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 1&N Dec. at 595.
In this matter, the petitioner's description of its ownership and control in the Form 1-129 does not establish that it
has a qualifying relationship with the foreign entity. The petitioner asserts in the L Classification Supplement to
Form 1-129 that it is 330/0 owned by _ which, in turn, is allegedly 80% owned by the foreign entity.
However, the record does not reveal the identity of the owner of the additional 67% interest in the petitioner. In
fact, the record as a whole is devoid of evidence establishing the ownership and control of both the petitioner and
the foreign entity as well as of evidence establishing that the foreign employer and the petitioner are currently
doing business. Once again, 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.
Accordingly, the petitioner has not established that it and the foreign entity are qualifying organizations. For
this additional reason, the petition may not be approved.
EAC 06 243 52064
Page 9
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
(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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.