dismissed L-1A Case: Gasoline Station

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'UBLiC C0llV
lJ;S.Departme.rit of H()meland 8.!!curity
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.K Citizenship
and Immigration
Services
File: EAC 05 15852068 Office: VERMONT SERVICE CENTER Date: MAY '03 ,'Z1I7
IN RE: Petitioner:
Beneficiary:
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:
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.
~,Robert P. Wiemann, Chief
Administrative Appeals Office
w.ww.uscis.gov
EAC 05 15852068
Page 2
DISCUSSION: The Director, Vennont Service Center, denied the petition for a noninunigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed·this nonimmigrant visa petition seeking to extend the employment of its.general manager
as an L-IA 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 under the laws
of the State of New York and operates a gasoline station. The beneficiary was initially granted a one-year
period of stay to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay.
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. In support of this assertion, the
petitioner submits 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 adrriissioninto the United
States. In addition, the beneficiary m1:lst 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 perfonned.
(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 perfonn the intended
services in the United States; however, the work in the United States need not be the
same work which the alien perfonned abroad.
EAC 05 15852068
Page 3
The regulation at 8 C.F.R. § 214.2(1)(14)(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)
(B)
(C)
(D)
(E)
Evidence that the United States and foreign entltles' are still qualifying
organizations as defined in paragraph (I)(1)(ii)(G) of this section;
.Evidence that the United States entity has been doing business as defined in
paragraph (I)(1)(ii)(H) of this section for the previous year; .
A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
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 in a
managerial or executive capacity; and
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 a primarily managerial or executive capacity:
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1l01(a)(44)(A), defines the tenn "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
EAC 05 15852068
\
Page 4
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, orfunction;
(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 is claiming to be primarily
engaged in managerial duties under s~ction 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four' criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The record in its totality indicates that the petitioner is in the business of operating a gasoline station and
convenience store. The petitioner listed the following responsibilities for the beneficiary it} a letter dated May
5,2005 appended to the initial petition:
1. Establish company policies m collaboration with president and parent company
executives.
2. Implement the organization's policies on a day-to-day basis.
3. Oversee and monitor operations.
4. Meet with customers and cOIltractors.
5. Negotiate and sign company contracts.
6. Attend high level meetings and set goals.
7. Coordinate and direct other professionals, manage budgets and contracts, and ensure .
that organization's objectives are met.
8. Implement procedures to improve productivity and customer service.
9. Planning, directing, and coordinating the operations of company.
10. Hiring and firing of employees.
The petitioner also provided tax records indicating that it employed five people during the quarter preceding
the filing of the instant petition.
On May 19, 2005, the director requested additional evidence. Specifically, the director requested evidence
establishing that the beneficiary will be employed primarily in an executive or managerial capacity.
In response, the petitioner provided an organizational chart showing the beneficiary at the top of the
EAC 05 158 52068
Page 5
organization answering only to the president. The beneficiary is shown supervising a "sales manager" and a
"bookkeeper" which, in tum, are shown collectively supervising three other employees. The petitioner
provided a job description for the "sales manager" as follows:
Direct the firm:s sales program, assign sales terrItories and goals. Maintain contact with
dealers and distributors. Determine sales potential and inventory requirements and monitor
the preferences of customers. Manage all aspects of developing and executing an integrated
marketing plan. Manage sales staff.
The petitioner also provided a job description for the "bookkeeper" as follows:
Maintain general ledger and payroll, [r]econcile and prepare statements and secure complete
financial records. Process invoices and prepare financial reports.
On August 25, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary willbe employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year'within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary will primarily be employed in a managerial or executive capacity. As explained above, a
petitioner cannot claim that some of the duties of the position entail executive responsibilities, while other
duties are managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely
on partial sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis.' For example, the petitioner states that the beneficiary establishes and implements policies. The
petitioner did not, however, specifically define what policies will be established and implemented. The fact
that the petitioner has given the beneficiary a managerial title and has prepared a vague job description which.
EAC 05 15852068
Page 6
includes lofty duties does not establish that the beneficiary will actually perfonn managerial 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 a/Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or managerial employees. As explained in the organizational chart, wage reports, and job
descriptions for the subordinate employees, the beneficiary appears to manage' a staff of four employees who
are engaged in operating the petitioner's business, i.e., a gasoline station. While the petitioner has given the
subordinate employees lofty titles and has described the "sales manager" and "bookkeeper" as having
supervisory or managerial functions, the petitioner has not established that these employees are primarily
engaged in perfonning supervisory or managerial duties. To the contrary, the subordinate employees appear
to be engaged in perfonning tasks related to providing a service or producing a product, i.e., sales and
bookkeeping. Inflated job titles and artificial tiers of subordinate employees are not probative and will not
establish that an organization is sufficiently complex to support a managerial position. In view of the above,
the beneficiary would appear to be primarily a first-line supervisor of non-professional employees, the
provider of 'actual services, or a combination of both. 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" perfonn the enu!Uerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial or executive employee must have
authority over day-to-day operations beyond the level nonnally 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.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, acadell1ies, or seminaries." The tenn "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a proionged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that tenn is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
EAC 05 15852068
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actually necessary to perfonn the duties of any of the beneficiary's subordinate employees. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.l
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the tenn "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 be acting primarily in an executive capacity. The job descriptIon provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will. do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an
executive capacity.
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 perfonn the non-
lWhile the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless would not support this position even if taken. The tenn "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 tenn "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 perfonned 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. § 2l4.2(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 perfonns the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
"any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary is primarily a first-line supervisor of non-professional employees. Absent a clear and credible
breakdown of the time spent by the beneficiary perfonning his duties, the AAO cannot detennine what
proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily
perfonning 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).
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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).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason.
Beyond the decision of the· director, the petitioner has failed to establish that a qualifying relationship still
exists between the petitioning entity and the foreign employer pursuant to 8 C.F.R. § 214.2(1)(1)(ii)(G). The
petitioner has also failed to establish that the foreign entity was "doing business" as defined in the regulations.
The record does not persuasively establish that the foreign entity owns and controls the petitioner. Moreover,
the record does not establish that the foreign entity was engaged in the continuous, regular, and systematic
provision of goods and/or services at the time the petition was filed. For these additional reasons, the petition
may not be approved.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary had been
employed abroad in a primarily managerial or executive capacity. 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(1)(3)(ii). The record is devoid of any evidence establishing what the beneficiary did
. abroad on a day-to-day basis. As explained above, 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, afj'd, 905
F.2d 41. 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. For this
additional reason, the petition may not be approved.
The initial approval of an L-IA new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting thatthe AAO reviews
appeals on ade 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. Here, that burden has not been met. Accordingly, the appeal will be
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Page 9
dismissed.
ORDER: The appeal is dismissed.