dismissed L-1A Case: Gasoline Station

1Iiiiir~ cfaIIdeIeeedto
preventclers.rly;Ji1warranted
tnvasionofpenonaJ privacy
PUBLIC COpy
u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 04 206 50804 Office: TEXAS SERVICE CENTER Date: SEP 0 7 2001
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:
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.
//""~'~~-"'~-
R:bert~:~ef
Administrative Appeals Office
www.uscis.gov
SRC 04 206 50804
Page 2
DISCUSSION: The Director of the Texas Service Center denied the nonimmigrant visa petition and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a Florida corporation allegedly engaged in the business of operating a gasoline station and
convenience store. The petitioner seeks to extend the employment of the beneficiary as its executive vice
president of operations 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 director denied the petition concluding that the petitioner failed to establish that the beneficiary will be
employed primarily in an executive or managerial 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, counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of a manager. Counsel also 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 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 (I)(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.
SRC 04 206 50804
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. § I I01 (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, although counsel appears on appeal to restrict the beneficiary to a managerial classification. A
beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the
two statutory definitions. Given the lack of clarity, the AAO will assume that the petitioner is asserting that
the beneficiary will be employed as either a manager or an executive and will consider both classifications.
The foreign entity described both the petitioner's business activities and the beneficiary's job duties in the
United States in a letter dated July 8, 2004 as follows:
SRC 04 206 50804
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After [the petitioner] was formed in accordance with the laws of the State of Florida, an
existing gas station/convenience store was purchased in September of 2001. The operation
has 16 gas pumps and 2 diesel pumps and is located near a major highway, which keeps the
business very busy; a majority of the customers are travelers and truck drivers. The
enterprise currently has a staff of 6 employees to run the operation (see organizational chart
for details). [The beneficiary's] position with the United States entity is that of Executive
Vice President of Operations and he will continue to perform the following duties[:]
Hire and fire employees consisting of managerial staff. (5%)
Approve/disapprove the hiring and firing of lower level employees. (5%)
Approve/disapprove the contracts with suppliers. (10%)
Define and implement company policy and goals. (350/0)
Define and implement financial projections. (10%)
Vendor, product and inventory analysis, review and adjustment. (15%)
Monitor and review financial figures. (15%)
Report to the company abroad. (5%)
The petitioner also submitted its year-to-date payroll summary report dated June 21, 2004 and an employee
change report. The payroll summary lists 5 employees, including the beneficiary. However, two of these five
employees were paid $620.75 and $682.00 respectively from January 1, 2004 until June 21, 2004. A third
employee was paid a total of $3,393.00 during this same time period. The petitioner does not explain whether
these employees are recent hires, or part-time employees or whether they ceased working for the petitioner
prior to the creation of the payroll summary report. Also, the employee change report indicates that a sixth
employee, Shimal Patel, began working for the petitioner on or about June 28, 2004 and was assigned a salary
of $16,900.00 per year. The instant petition was filed on July 23, 2004.
Finally, the petitioner submitted an organizational chart and a description of the subordinate employees. The
chart shows the beneficiary at the top of the organization supervising a "staff supervisor/assistant general
manager." Shimal Patel, the individual hired 26 days before the instant petition was filed, is identified in the
chart as the "staff supervisor/assistant general manager." The "staff supervisor/assistant general manager" is,
in tum, shown to supervise four cashiers. While the cashiers are described as performing the tasks necessary
to produce a product or to provide a service, the "staff supervisor/assistant general manager" is described as
follows:
• Oversee and direct sales staff, ensure duties are carried out properly (30%)
• Assign duties and tasks to the staff (5%)
• Ensure accurate inventory (10%)
• Order inventory and stock (100/0)
• Receive shipments, ensure accuracy of items (100/0)
• Office administration (10
%
)
• Ensure customer satisfaction (100/0)
• Train employees as necessary (5%)
• Hire and fire personnel (5%)
SRC 04 206 50804
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• Report to Executive Vice President of Operations (50/0)
On August 3, 2004, the director requested additional evidence. The director requested, inter alia, a further
explanation regarding the duties of the "staff supervisor/assistant general manager" and the beneficiary.
In response, counsel to the petitioner submitted a letter dated August 18, 2004 in which she explained the
difference between the beneficiary and the "staff supervisor/assistant general manager" as follows:
The primary difference between the applicant/beneficiary's duties and those of the Assistant
General Manager is that the beneficiary's tasks are related to overseeing the overall direction
of the operation of the entity. The beneficiary is not involved with the day[-]to[- ]day tasks of
the operation.
The Assistant General Manager oversees the day[ -]to[ -]day tasks of the operation like
inventory, money counting, office administration, and ordering of stock from suppliers. The
Assistant General Manager also oversees and directs the 4 other employees with tasks such as
scheduling the employees and assigning tasks to the employees.
On September 1, 2004, the director denied the petition. The director concluded, inter alia, that the petitioner
failed to establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of a manager.
Upon review, the petitioner's assertions are not persuasive.
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 is primarily 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 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.
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 will devote 350/0 of his time defining and
implementing "company policy and goals," although the petitioner never specifically explains what goals and
policies for this single-location gasoline station and convenience store are being defined and implemented.
Further, the petitioner states that the beneficiary will devote 150/0 of his time to "[v]endor, product and
inventory analysis, review and adjustment." However, the petitioner does not explain what, exactly, the
beneficiary will do in performing this duty. The fact that the petitioner has given the beneficiary a managerial
SRC 04 206 50804
Page 6
title and has prepared a vague job description does not establish that the beneficiary will actually perform
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 of Treasure Craft of California, 14 I&N Dec. 190
(Reg. Comm. 1972).
Furthermore, some of the duties ascribed to the beneficiary are simply not credible and are inconsistent with
the facts surrounding the petitioner's operation of a single-location, six-employee gasoline station and
convenience store. For example, the petitioner asserts that the beneficiary will spend 5% of his time hiring
and firing "employees consisting of managerial staff." However, the petitioner purports to employ only one
first-line supervisor, and the record indicates that this worker was hired approximately 26 days before the
instant petition was filed and that the petitioner has no plans to hire additional employees. Also, the petitioner
asserts that the beneficiary spends 5% of his time reporting "to the company abroad." However, the
beneficiary owns and controls both entities as a 50% owner.
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.
As explained in the organizational chart, payroll reports, and job descriptions for the subordinate staff
members, the beneficiary appears to directly or indirectly supervise a staff of approximately five employees.
The petitioner asserts that the beneficiary supervises a first-line supervisor, the "staff supervisor/assistant
general manager," who, in tum, supervises the approximately four cashiers as well as the performance of the
day-to-day tasks of the operation. However, the petitioner has not established that the "staff
supervisor/assistant general manager" is primarily engaged in performing first-line supervisory duties. To the
contrary, it appears that this employee is primarily performing the tasks necessary to produce a product or to
provide a service. A majority of the tasks ascribed to the "staff supervisor/assistant general manager" are
tasks relating to inventory, stocking, receiving shipments, office administration, customer relations, training,
and reporting to the beneficiary. Only a minority of the tasks appear related the supervision of subordinate
employees. Moreover, it is simply not credible that a six-employee, single-location gasoline station and
convenience store with no specific expansion plans would require a subordinate level of supervisors and
managers. Artificial tiers of subordinate employees and inflated job titles are not probative and will not
establish that an organization is sufficiently complex to support an executive or managerial position. The
petitioner has not established that the reasonable needs of the United States operation compel the employment
of a managerial or executive employee to oversee one or more subordinate supervisors. To the contrary, it is
more likely than not that both the beneficiary and the "staff supervisor/assistant general manager" are
primarily performing non-qualifying tasks alongside the petitioner's other employees. See Family, Inc. v. u.s.
Citizenship and Immigration Services, 469 F.3d 1313 (9 th Cir. 2006).
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" performs
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
SRC 04 206 50804
Page 7
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988). 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International,
19 I&N Dec. at 604. As the petitioner did not reveal the skill level or educational background of the
subordinate employees, the petitioner has not established that the beneficiary will manage professional
employees. 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 be acting primarily in an executive capacity. The job description provided
IWhile the petitioner has not clearly 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 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 manager of non-professional employees and/or is engaged in performing
non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent
by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties would 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).
SRC 04 206 50804
Page 8
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 and/or is performing 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.
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).
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, it must be noted that the director should have denied the petition as untimely
pursuant to 8 C.F.R. § 214.2(1)(l4)(i). Title 8 C.F.R. § 2l4.2(1)(14)(i) clearly states that an extension petition
may only be filed if the validity of the original petition has not expired. The previous petition was approved
from July 19, 2002 until July 18, 2004. The instant extension petition was filed on July 23, 2004, and the
petitioner clearly indicates that its basis for the classification sought is the "continuation of previously
approved employment without change." The petitioner also seeks to "extend the stay of [the beneficiary]
since [he] now hold[s] this status." However, since the validity of the original petition expired on July 18,
2004, the instant extension petition filed on July 23, 2005 should have been denied as untimely. Therefore,
the petition will be denied for this additional reason?
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign employer. 8 C.F.R. § 2l4.2(1)(3)(i). The record is devoid of evidence establishing the ownership
and control of both the foreign employer. 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 petition may not be approved for this
additional reason.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad
for one year in a position that was managerial, executive, or involved specialized knowledge. 8 C.F.R. §§
2The AAO notes that counsel to the petitioner included a letter with the petition taking full responsibility for
the late filing of the petition extension due to a family crisis and asks Citizenship and Immigration Services
(CIS) to consider the petition as "timely filed hoping that [CIS] understands the circumstances underlying the
oversight." While CIS understands the situation, it must be noted that neither the Act nor the regulations
vests CIS with the authority or discretion to treat the instant petition as timely filed. The regulation at 8
C.F.R. § 214.2(1)(14)(i) clearly states that the instant petition extension may only be filed if the validity of the
previous petition has not expired. Even if CIS had the discretion to consider the petition extension as timely
filed, the AAO concludes that the exercise of this discretion would not have been justified in this matter since
the petitioner could always have filed a petition for new employment, and the beneficiary could have departed
the United States and applied for the appropriate visa abroad if such a petition had been approvable.
SRC 04 206 50804
Page 9
214.2(1)(3)(iii) and (iv). 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) and (iv). The
petitioner's description of the job duties must clearly describe the duties performed by the beneficiary abroad
and indicate whether such duties were either in an executive or managerial capacity. Id. In this matter, the
record is devoid of convincing evidence establishing the beneficiary duties abroad. The fact that the
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description
does not establish that the beneficiary actually performed qualifying duties. Accordingly, the petition may
not be approved for this additional reason.
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), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals ona 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 is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
Finally, based on the reasons for the denial of the instant petition, a review of the prior L-l nonimmigrant
petitions (SRC 01 218 55426 and SRC 02 230 52900), and the immigrant petition (SRC 03 160 50618), all
approved on behalf of the beneficiary, is warranted to determine if they were also approved in error.
Therefore, the director shall review these prior petitions approved on behalf of the beneficiary for possible
revocation in accordance with 8 C.F.R. § 214.2(1)(9) and 8 C.F.R. § 205.2.
ORDER:
FURTHER ORDERED:
The appeal is dismissed.
The director shall review the prior L-l nonimmigrant petitions, and the
immigration petition, approved on behalf of the beneficiary for possible
revocation pursuant to 8 C.F.R. § 214.2(1)(9) and 8 C.F.R. § 205.2.