dismissed L-1A Case: Gas Station And Convenience Store

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U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File:
INRE:
WAC 03 223 54671
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the.Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~/
~---~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
wAc 0322354671
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa and
denied a subsequent motion to reopen and/or reconsider. 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 and chief
executive officer 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 in the State of Arizona that claims to be engaged in the operation of a gas station and convenience
store. It claims that.it is the affiliate of Flamingo International, located in Bombay, India. The beneficiary
was granted two one-year periods of stay to open a new office in the United States. The petitioner now seeks
to extend the beneficiary's stay for an additional three years..
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 director denied counsel's
motion to reopen, noting that the motion failed to set forth new facts and was not supported by affidavits or
documentary evidence. The motion to reconsider was likewise denied based on the director's conclusion that
the reasons for reconsideration were not set forth and were not supported by pertinentprecedent decisions.
Counsel for the petitioner simultaneously filed an appeal to the AAO of the director's initial decision to deny
the petition. On appeal, counsel for the petitioner asserts that the director's decision constituted a gross
misrepresentation or misunderstanding of the requirements for an executive, and in support of this assertion,
counsel ~ubmits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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)(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.
WAC 03 223 54671
Page 3
(iv) Evidence that the alien's prior year of employment abroad was iIi a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher 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 regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) ofthis section;
(b) Evidence that the United States entity has been doing business as defined In
paragraph (l)(l)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed ina managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in aprimarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 110l(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
WAC 03 223 54671
Page 4
(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 manqgerial 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 ofthe organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher levehxecutives, the board
of directors, or stockholders of the organization.
With the petition, counsel for the petitioner submitted a letter of support dated July 29, 2003. The letter
explained that the petitioner's original ,business purpose, to operate a retail grocery establishment, was
subsequently replaced by mini-markets and gas stations. Counsel also explained that, since the beneficiary's
visa was granted, he had acquired two gas stations from one in June of 2002 and the second
in March of 2003. Counsel further stated that the petitioner currently employed seven people and would hire
an additional two employees after August 1,2003.
With r~gard to the beneficiary's duties, counsel stated:
[The beneficiary] indeed meets the criteria of an executive rather than that of the hands-on
worker. His responsibilities are to explore opportunities for expansion as well as assuririg
that the existing businesses are well-run and profitable. [The beneficiary] is responsible for
cash flow projections, implementing the policy of the limited partnership, budgeting,
supervising the purchase of supplies and hiring, supervising and firing employees. Inthe
time that [the beneficiary] has been at the helm, profit margins have increased to 25% a~d the
entire operation has been made more attractive and customer-friendly.
On September 20, 2003, the director requested additional evidence. Specifically, the director requested more
specific information with regard to the duties' of the beneficiary and his subordinates, including an
organizational chart outlining the staffing of the organization and a statement providing an overview of the
duties of all other employees along with their titles and rank. The director also requested evidence of wages
paid to the petitioner's employees.
In a response dated November 3, 2003, counsel for the petitioner submitted a letter addressing the director's
queries. With regard to the number of employees, counsel stated that "[the beneficiary] has built the U.S.
business from nothing to an operation which includes two gas stations and no less than 6 direct hire
WAC 03 223' 54671
Page 5
employees." With regard to the organizational structure of the business, a chart was submitted, and counsel
explained that the business had two managers, each of whom were under the beneficiary's supervisIon. The
organizational chart demonstrated that the beneficiary was at the top of the petitioner's organizational
hierarchy, and oversaw the two managers, each of whom were delegated to one of the two stores. The
following staffing was demonstrated at each station:
•
•
, who oversaw:
Customer Sales Representative (Full-Time)
~======:::~:er Sales Representative (Part-Time)
• r Sales Representative (Part-Time)
•
•
•
Kevi's 76:
••••••• , Manager, who oversaw:
Customer Sales Representative (Full Time)
,Customer Sales Representative (Part Time)
Purchasing Agent
The petitioner further indicated that all employees possessed a high school diploma or GED, and that several
were taking college level courses. The petitioner, through counsel, further noted that the responsibilities of
the managers and their subordinates included making sure that the gas stations were maintained, that
. customers were treated with respect, that washrooms were kept clean, that cash receipts were accounted for,
that commercial accounts were properly charged, and that supply levels were maintained.
On December 3, 2003, the director denied the petition. The director determined that the beneficiary was not
employed in a primarily managerial or executive capacity. Specifically, the director noted that the beneficiary
was not overseeing a subordinate staff of professional, supervisory or managerial employees, and thus was
not a managerial employee.
On appeal, counsel for the petitioner asserts that the beneficiary's position was that of an executive, and that
an execl.ltive, by definition, was not required to supervise employees. Counsel furt~er asserts that had they
claimed that the beneficiary was performing in a managerial capacity, it was clear that he was not functioning
as a first line supervisor. Finally, counsel submits a letter from , Wholesale Territory
Supervisor of , who outlines in briefhis working relationship with the beneficiary.
While it is clear that the petitioner did not wish for the beneficiary to be considered under the managerial
capacity, the AAO will review the record for compliance under both capacities to afford the petitioner the
broadest sense of review for the benefit sought. 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 quties are either in an executive or managerial
capacity. Id.
WAC 03 223 54671
Page 6
In this matter, the petitioner has failed to provide an acceptable description of the beneficiary's proposed
duties. Instead, it merely provided a vague overview of the general nature of his duties. Although the
petitioner responded tQ the director's request for additional inforrriation about the petitioner's other
employees, including their position titles and duties, this response did little to shed light on the beneficiary's
actual role in the organization. As such, the record contains little information with regard to the exact nature
ofthebenefjciary's duties.
Reciting the beneficiary's vague job responsibilities or broadly-cast bllsines.s 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 themseives will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp.
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Counselfor the petitioner stated simply that
the beneficiary's time is, spent on exploring expansion opportunities and hiring,supervising, and firing
employees. As a result, counsel concluded that the beneficiary "indeed meets the criteria of an executive."
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. Fedin Bros. Co.,
Ltd.. v. Sava, 724 F. Supp. at 1i 08, aff'd, 905 F. 2d 41; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at
*5 (S.D.N.Y.).
In this matter, counsel' s spe~ific assertions on appeal that the benefi~iary' is an exec~tive a~d is not required
to supervise personnel is correct. However, it was still claimed that a major part of the beneficiary's duties
included overseeing staff. Although the beneficiary is not required to s~pervise personnel, if it is claimed that
his duties involve supervising employees, the petitioner must establish that the. subordinate employees are
supervisory, professional, or managerial for. the purPose of determining whether he meets the alternative
requirements for a managerial capacity position.
l
See § 101(a)(44)(A)(ii) of the Act.
Although the petitioner did claim that the beneficiary's subordinates possessed high school diploma~ or the
equivalent, it did not provide the level of education required to perform the duties of its managers and
customer service representatives. Although the petitioner indicates that some of these persons are taking. .
college courses, there is no evidence that an advanced degree is necessary to perform the duties of these
positions. Thus, the petitioner has not established that these employees possess or' require an advanced
degree, such that they could' be classified as professionals. Nor has the petitioner shownthat either of these
. employees supervise subordinate staff members or manage a clearly defined department or function of the
petitioner, such that they could be classified as managers or supervisors. While the' organizational chart
indicates that a manager oversees sales representatives and a purchasing agent, the collective description of
.their duties provi.ded in response to the request for evidence makes no distinction between the duties of the
managers or the sales representatives. As no independent evidence or discussion' of their duties has been
provided to set them apart from the other employees, the AAO cannot find that theY' are managerial or
1 To the extent that the director's comments indicated that an executive capacity position requires a staff of
professionals to relieve a beneficiary from performing non-qualifying duties, these comments will be
withdrawn. A subordinate professional staff is only required to qualify under the managerial capacity and
only in the event that the beneficiary is a first-line supervisor of non-superVisory or non-managerial
employees. § 10l(a)(44)(A)iv), 8 U.S.c. § I 10I(a)(44)(A)(iv).
WAC 03223 54671
Page 7.
supervisory' employees other than in name. Without documentary evidence to support the claim, the
assertions of counsel will not satisfy the petitioner's burden of proof. The unsuPI>ortedassertions of counsel
do not c~nstitute evid~nce. Matter ofObaigbena, 1,9 I&N Dec. 533,534 (BIl\. 1988); Matter ofLaureano, 19
I&N "D~c. J, (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIk 1'980), Thus, the
petitioner haE;' not shown that the beneficiary's subordinate employees are supervisory, professional, or
managerial, as required by sectIon 101(a)(44)(A)(ii) ofthe Act.
The petitioner, must establish th~t the position offered'to the beneficiary when the petition was filed merits
classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249
(Reg. Comm. 1978). The record is not persuasive in demonstrating that the beneficiary will be employed ,in a
primarily managerial or executlve capacity. The, description of the beneficiary's duties, coupled with the
vague description of the other employees, the nature of the business, and the limited full-time staff suggest'
that in order to ensuresmoothoperation of the two businesses, the beneficiary will likely spend the majority
of his time engaging in non-qualifying duties; Absent evidence to the contrary, the AAO is unable to
conclude thatthe beneficiary is primarily employed in a managerial or executive capacity. An employee ~ho
primarily performs the tasks necessary to produce a product or to provide services is not considered to be
employed in ainanagerial Of executive capacity. Matter of Church Scientology International, 19I&N Dec.
593,604 (Comm. 1988).
In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position as required by 8 C.F.R. § 214.2(1)(3). For this reason, the
,'petition maynot be approved:
While not directly addressed by the director, the minimal documentation of the petitioner's business
operations raises the issue of whether the petitioner is a' qualifying organization doing business in the United
States. 'Specifically, under the regulation at 8C.F.R. § 214.2(1)(1)(ii)(G)(2) a petitioner, must demonstrate that
it is engaged in the regular, systematic, and continuous provision of goods or services and does not repr,esent
the mere presence of an agent or office in the United States.
, 1
In this matter, the petitioner claims that it acquired two gas stations in the United States in June 2002 and
March 2003, respectively. In addition, it claims that in order to acquire the initial interest? it wasrequired to
· enter into a joint venture with A copy of this agreement is submitted for the record;
however, it indicates that the petitioner's membership interest totals only 49 percent.
· Although documentation in the fo~ of corponite tax returns and quarterly wage reports indicates that the
, petitioner directly pays wages to its employees, all evidence of business transactions; including bank and
· credit card records, monthly reports, and invoices are in the name of There is no
documentary evidence that the petitioner is actually conducting business in a systematic and continuous
, matter, as required by the regulations. Furthermore, the fact that the petitioner holds only a~inority interest
in negates the possibility thatthe petitioner is conductingbusiness through a legitimate
subsidiaryoperati()n in the United States. For this additional reason, the petition may not be approved.
"
,: Additionally, the minimal. documentation of the petitioner's ownership raises the question of whether a
qualifying relationship in fact e,xists between the parties as required by 8 C.F.R. § 2l4.2(1)(1)(ii)(G). The
WAC 03 223 54671
Page 8
petitioner submits copies of four stock certificates, indicating that four persons own equal shares in the
petitioner. This evidence, on its face, is persuasive, since the four shareholders are also the four partners who '
own and operate the foreign entity. As general evidence of a petitioner's claimed qualifying relationship,
stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership
and control of a corporate entity. The corporate stock certificate ledger; stock certificate registry, corporate
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total
number of shares issued, the exact number issued to the shareholder, and the subsequent percentage
ownership and its effect on corporate contro1. Additionally, a petitioning company must disclose all
agreements relating to thevotjng of shares, the distribution of profit, .the management· and direction of the
subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemensMedical Systems;
Inc.~ 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, CIS is unable to
determine the elements of ownership and contro1.
The petitioner has failed to establish the critical element of ownership with documentary evidence in this
matter, and thereby fails to show that a qualifying relationship exists between the parties. For this additional
reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Ca1.2001), affd. 345 F.3d 683
(9th Cir. 2003); seealsoDor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that theAAOreviews
appeals on a de novo basis).
In visa petition proceedings, the burden of proving eligibility for the benefit SOllghtremains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER,: The appeal is dismissed.