dismissed L-1A Case: Guitar Business

T..
identifyingdatadeletedto
preventclearlyun~invaSionofpersonalpnvacy
U,S. Department of Homeland Security
20 Massachusetts Ave.,N.W., Rm. A3000
Washington, DC 20529
U.~. Citizenship
and Immigration
Services
PUBLlceOP~
File: SRC 05 148 50053 Office: TEXAS SERVICE CENTER Date: .MAr4) r2001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L)ofthe 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 you~ 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~ ~ief
Administrative Appeals Office.
SRC OS 148 SOOS3
Page 2,
DISCUSSION: The Director, Texas 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 petition seeking to employ the beneficiary in the position of "manager
- specialist sales" to open anew office in the United States as an L-1A nonimmigrant intracompany transferee
pursuant to section 101(a)(lS)(L) of the Immigration and Nationality Act (the Act); 8 U.S.c. §
1101(a)(1S)(L). The petitioner, a limited liability company organized under the laws of the State of Florida,
claims to be engaged in the guitar business. l
The director denied the petition concluding that the petitioner failed to demonstrate (1) that the beneficiary
has been employed abroad primarily in an executive or managerial capacity; or (2) that the intended United
States operation, within one year of the approval' of the petition, will support an executive or manage~ial
position.
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 beneficiary
has been and will be employed primarily in an executive or managerial capacity. In support of the appeal,
counsel submits a brief.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(1S)(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 indi~idual petition filed on Form i-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 performed.
lAccording to Florida state corporate .records, the petitioner's legal status in Florida was "administratively
dissolved" on September IS, 2006. Therefore, since the limited liability company may not carry on any
business except that necessary to wind up and liquidate its affairs, and the petitioner has not taken steps under
Florida law to seek reinstatement, the company dn no longer be considered a legal entity in the United States.
See Fla. Stat. 607.1421 (2006). Therefore, this calls into question the petitioner's continued eligibility for the
benefit sought.
SRC 05 148 50053
Page 3
(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 employ~ent qualifies himlher t? 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.
In addition, the regulation at 8 C.P.R. § 214.2(l)(3)(v) states that ifthe petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employme~t involved
executlve or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The first issue in this matter is whether the beneficiary had been employed abroad for one continuous year in
the three year period preceding the filing of the petition in an executive or managerial capacity as required by
8 c.P.R. § 214.2(l)(3)(v)(B).
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I I01 (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
SRC 05 148 50053
Page 4
the organization;
_ (ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manage~ 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. § 1l01(a)(44)(B), de.fines 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 execut!ves, the board
of directors, or stockholders of the organization.
The petItlOner does not clarify whether the beneficiary is claiming to have been primarily engaged il).
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 beneficiary may not claim to have been employed asa hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
. representing the beneficiary as both ~m 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 described the benefici~ry's jo~ duties in a letter appended to the initial petition:
[The beneficiary's] duties working for [the foreign entity] have been in two focused areas of
development. First as a Specialised Sales Manager for our
and secondly as a g~neral manager of the business allowing me to concentrate on developing
SRC 05 148 50053
Page 5
the markets we usually trade in. As a manager [the beneficiary] has been responsible for the
huge road shows we have completed over the last five years in which we demonstrated our
products in various cities across the UK. He worked with some of the biggest names in the
world on those shows.
On May 12, 2005, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the foreign entity and a description of the job duties of the beneficiary's subordinate
employees.
In response, the petitioner provided an organizational chart portraying the beneficiary as directly or indirectly
supervising a sales employee, two guitar demonstrators, an "engineer," and a "sales logistics" employee. The
petitioner also provided position descriptions revealing that the guitar demonstrators, the sales logistics
employee, and the engineer are not employees of the foreign entity, and that the sales employee sells t-shirts
and other merchandise. on a part-time basis· at certain events. The record indicates that the beneficiary's
subordinate workers are generally hired on an "as-needed" basis, and that their employment appears to relate
to occasional guitar saies events. Other than these occasional independent contractors, the beneficiary does
not appear to manage or supervise any subordinate employees. Moreover, the organizational chart includes
only one other employee assigned to operating the retail store in the United Kingdom. This employee is not
described as being subordinate to the beneficiary even though he is identified as being the "manager." .
On November 3, 2005, the director denied the petition concluding that the petitioner failed to establish that
the beneficiary has been employed abroad primarily in an executive or managerial capacity.
On appeal, counsel asserts that the beneficiary has been employed primarily as an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
When examining the executIve or managerial capacity of the beneficiary, the AA.0 will look first to the
petitioner's description ofth.ejob duties. See 8 C.F.R. § 214.2(1)(3). 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. [d.
The petition~r's description of the beneficiary's job duties fails to establish that the beneficiary has acted in a
"managerial" capacity overseas. 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 does on a day-to-day
basis. While the petitioner claims that the beneficiary has been responsible for organizing road shows and
managing the foreign entity's store, the record is devoid of any specifics regarding what, exactly, the
beneficiary must do to organize these road shows or how much time he dedicates to this function vis-a-vis his
duties to the retail operation. Given that the petitioner does not employ any subordinate staff dedicated to
assist him with organizing the road shows and only employs one in-store. sales assistant to assist the
. beneficiary in operating the retail store, it has not been established that a subordinate staff exists to,relieve the
beneficiary of the need to perform the non-qualifying administrative or operational tasks inherent in the duties
ascribed to him. An employee who "primarily" performs the tasks necessary to produce a product or to
SRC 05 148 50053
Page 6
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 (Comm.
1988).
The fact that the petitioner has given the beneficiary' a managerial title and has prepared a vague job
description does not establish that the beneficiary has actually been primarily performing 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), a.ff'd, 905 F.2d 41 (2d. Cir.
1990). Going on record without supporting documentary evidence is not sufficient forpurposes of meeting
the burden of proof in these proceedings. Matter of Treasure Craft ofc;alifornia, 14 I&N Dec. 190 (Reg.
Comm. 1972).
The petitioner has also failed to establish that the beneficiary has supervised and controlled the work of other
supervisory, managerial, or professional employees, or.has managed an "essentialfunction of the organization.
While the foreign entity has. provided an organizational chart and job descriptions for the beneficiary's
subordinate staff, it does not appear that any of these staff members are acfually employees of the petitioner.
Rather, the record indicates that all of these subordinates are either hired on an as-needed basis or are self­
employed independent contractors. In order for a beneficiary to be classified as a managerial employee based
on the supervision and control of subordinate personnel, the petitioner must establish that the beneficiary is
supervising and controlling employees and not independent contractors. See 8 C.F.R. § 214.2(1)(l)(ii)(B)(2).
Regardless of their employment status, the record is devoid of any evidence that the subordinate' staff
members are supervisory, managerial, or professional. At most, the beneficiary has been established to be a
first~line supervisor of personnel, a 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. SectionlOl(a)(44)(A)(iv) of the Act; see also
Matter ofChurch Scientology International, 19 I&N Dec. at 604?
2Moreover, the petitioner has not established that the beneficiary has managed an essential function of the
foreign: entity. The term "function manager~' applies generally when a beneficiary does not supervise or
control the work of a subordinate staff but instead is priI?arily 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 has managed an
essential function. As explained above, the petitioner's vague job description fails to document what
proportion of the beneficiary's duties had been managerial functions, if any, and what proportion had been
non-manageriaL Absent a clear and credible breakdown of the time spent by the beneficiary performing his
SRC 05 14850053·
Page 7
Similarly, the petitioner has failed to establish that the beneficiary had been acting 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
benefitiaryto 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 had been acting primarily in an executive capacitY.· As explained
above, the vague job description fails to clearly define what the beneficiary did on a day-to-day basis overseas
or to explain how he has was relieved of the need to perform non-qua!ifying administrative or operational
tasks given the absence of a full-time subordinate staff. Therefore, the petitioner has not established that the
beneficiary has been employed primarily in an executive capacity.
Accordingly, the petitioner did not establish that the beneficiary had been employed for one continuous year
in the three year period preceding the filing of the petition in an executive or managerial capacity as required
by 8 C.F.R. § 214.2(l)(3)(v)(B), and for this reason the petition may not be approved.
The second issue in this proceeding is whether the intended United States operation, withiri one year of the
approval of the petition, will support an executive or managerial position.
In the letter dated April 28, 2005, counsel explained that the petitioner intends on opening a retail operation in
Florida specializing in vintage·guitars and that it desires to employ the beneficiary as its "manager.- specialist
sales"to open the new office in the United States. The beneficiary's duties were summarized as follows:
In this capacity, [the beneficiary] will be responsible for the day-to-day management of the
store, and will use his extensive knowledge of the vintage Ibanez guitar market to properly
manage inventory levels through the acquisition, trade, aftd sale of these rare collectibles. His
I
managerial' duties will include the handling of all imports and exports, the hiring of staff
members, the scouting for and opening of new retail locations, and all other management
functions until such time that the company can afford to expand its U.S. based management·
team. [The beneficiary] will additionally oversee the personalized search service that will
allow customers to locate specific designs, finishes, or brands of guitars. He will also work to·
duties, the AAO cannot determine what proportion of his duties had been managerial, nor can it deduce
whether the beneficiary had been primarily performing the duties of a function manager. See lKEA US, Inc.
v. u.s. Dept. ofJustice,48 F. Supp. 2d 22,24 (D.D.C. 1999).
. SRC 05 148 50053
Page 8 .
promote and organize guitar demonstrations and other events similar to those that he directed
while in the United Kingdom.
The petitioner also provided a "business development plan" outlining its proposed United States operation.
On August 3, 2005, the director requested additional evidence. The director requested, inter alia, that the
petitioner "identify the proposed staffing level which should be realized by the US company by the end of the
first-year start-up period."
In response, the petitioner indicated that by the end of its first year· in operation it plans to employ one
"general employee with trainee management potential" and, possibly, a part-time receptionist. The petitioner
avers that the beneficiary's role as "manager" during the second year in operation "will be largely unchanged"
from his role during the first year. By the end of the second year, the petitioner indicated that it plans to add
two self-employed sales representatives to its organization.
,
On November 3, 2005, the director denied the petition concluding that, according to the petitioner's
description of its business plan, the intended United States. operation, within one year of the approval of the
petition, will not support an executive or managerial position.
On appeal, counsel asserts that the intended United States operation will support a managerial or executive
position.
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for settihg up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year ofoperations, the regulations require the petitioner to disclose the business pl~ms and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. Se~ 8 C.F,R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
.moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
;
The petitioner has failed to present evidence sufficient to establish that the intended United States operation,- .
within one year of the approval of the petition, will support· an executive or managerial position. The record
does not establish that the petitioner's execution of its business plan will result, after one year, in the establishment
of a business which will require the services of an executive or managerial employee. As indicated above, the
petitioner intends on establishing a retail guitar business which will, after one year, employ the beneficiary, a part­
time receptionist, and a third employee with "trainee management potential." The petitioner admits that the
beneficiary's role after the first year in operation will remain largely unchanged once the business enters its
second year. Therefore, the beneficiary will continue to be engaged in perforrrring the day-to-day tasks necessary
SRC 05 148 50053
Page 9
to the operation of the business and will not be free to primarily focus on the broad goals and policies of the
organization. Moreover, the proposed subordinate employees have not been established to be managerial,
supervisory, or professional in nature.. In view of the above, the record establishes that the beneficiary, after
the first year in operation, will be performing the tasks necessary to provide a service, will be acting as a first­
line supervisor, or will be 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 ina managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated m,;magerial or executive duties); see also Matter of Church Scientology International, 19 I&N
Dec. at 604. 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 ofChurch SCientologyInternational, 19 I&N Dec. at 604.
Accordingly, the petitioner has not established that the intended United States opera~on, within one year of the
approval of the petition, will support an executive. or managerial position as required by 8 C.F.R. §
214.2(l)(3)(v)(C).
Beyond the decision of the director, the petitioner did not establish that sufficie~t physical premises to house
the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
\
I
In the initial petition, the petitioner provided a copy of a letter dated March 20, 2004 from Charles A. Savage·
III & Associates offering the use of 2157 NE 2nd St., Ocala, Florida to the petitioner. In that letter, the
potential lessor indicated that the premises would be available beginning June 2005. In response to the first
Request for Evidence, the petitioner provided a copy of a lease between the above lessor and the petitioner for
space located in 2157 NE ~nd St., Ocala, Florida. The lease states that the petitioner's occupancy of the
premises will begin on July 1, 2005. However, because the petition was filed on April 29,.2005, the petitioner
failed to establish that it had secured sufficient physical premises to house the new office as of that date.. The.
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition, and, in a "new office"
petition, it must show that it is ready to commence doing business i~ediately upon approval. A visa
pet.ition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Therefore, because the
petitioner had not secured physical premises to house the new office at the time the petition was filed, 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), 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 AAOreviews
appeals on a de novo basis).
The petition will be denied for the above sta"ted 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.
SRC 05 14850053
Page 10
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 burdenhas not been met.
ORDER: The appeal is dismissed.