dismissed L-1A Case: Handicrafts

identifyingdatadeletedto
preventclearlyun~ted
invasionofpersonalprivacy
U.S. Department. of fl!iriieland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizellshi p
and Immigration
ServiCes
File: SRC 0505951476 Office: TEXAS SERVICE CENTER Date: HAY 0 12007
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.
~.z~~.Robe .- 1emann~hlef
Administrative Appeals Office
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SRC 05 05951476
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 visa petition seeking to extend the employment of its president as an L­
1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Texas and alleges to be in the business of importing and selling handicrafts. The petitioner
claims a qualifying relationship with North-West Switchgear Limited. 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.1
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or.executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily' those of an executive or manager.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter th.e 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 performed.
(iii) Evidence that the alien has at least one continuous year Of full time employment
abroad with a qualifying organization within the three yea~s preceding the filing of
the petition.
IAccording to the corporate records of the State of Texas, the petitioner's status in Texas is not in good
standing. Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the petitioner's
eligibility for the benefit sought is called into question.
SRC 0505951476
Page 3
(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 s.tates need not be the
same work which the alien performed abroad .
.The regulation at 8 C.F.R. § 214.2(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) of this section;
.(BY EVIdence that the United States entity has been doing business as .defined in
paragraph (l)(l)(ii)(H) of this section for theprevious 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 in a
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 a primarily managerial or executive capacity.
(
Section rOl(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) mat~ages the organization, or a department, subdivision, function, or component of
the organization;
(ii)supei-vises 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;
i.
(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 actio~s (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
SRC 0505951476
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(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 V.S.c. § I 101 (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) establishe~ 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 is claiming to be primarily
engaged in 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 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 petitioner described the beneficiary's job duties in the Form 1-129 as follows:
As President, [the beneficiary] will continue to be responsible for all activities concerning
[the petitioner's] operations and business, including the establishment of goals and policies
for [the petitioner], business development, sales and marketing, financing, an.d recruitment. .
. The petitioner further described the beneficiary's job duties in a letter dated December 19,2004 as follows:
. ".
As President, [the beneficiary] will continue to apply his managerial expertise in this
executive and managerial position. He will continue to be responsible for all activities
-concerning [the petitioner's] operations and business, including the establishment of goals and
policies for [the petitioner], business development, sales and marketing, financing, and
recruitment. He exercises discretion over the daily operations of the company and establishes
the organizational structure of [the petitioner] in order to support its daily operations. As
President, [the beneficiary] exercises wide latitude in discretionary decision-making. He
receives only general direction from the parent company's Board of Directors. He is
responsible for making personnel decisions, including the hiring, supervision and dismissal of
employees and o,verseesall aspects of the company on an executive and managerial level.
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On January 10, 2005, the director requested additIonal evidence. The director requested, inter alia, an
organizational chart, information regarding supervised employees, evidence that the beneficiary is employed
in a managerial or executive capacity, and wage reports for the petitioner's employees.
In· response, the petitioner provided an organizational chart for the United States operation showing the
beneficiary at the top of the organization supervising two employees, a "senior buyer" and a "sales manager." .
I .
The chart also shows the beneficiary supervising a financial/accounting employee; however, the chart
indicates that the beneficiary himself has filled this position. The petitioner also provided job descriptions for
the "senior buyer" and the "sales manager." While the petitioner claims that both of these employees possess
university degrees, the job descriptions indicate that these employees are engaged in performing the duties
necessary to produce a product or to provide a service. The "senior buyer" is engaged in purchasing items for
resale and the "sales manager" is engaged in working with customers and procuring wholesale orders.
.On April 18, 2005, the director denied the petition. The director concluded 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 an executive or milnager.
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 ofthe jqb
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 bepeficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
se~tions 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 thebeheficiary'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 goals and policies and makes
personnel decisions. The petitioner did not, however, specifically define what goals and policies will be
established or explain what personnel decisions he needs to make given that the petitioner employs only two
other people, one of whom is the beneficiary's spouse. The fact that the petitioner has bestowed a managerial
SRC 05 059 51476
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title upon the beneficiary and has prepared a vague job description, which includes lofty duties, 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 reite~ating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.NN. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient, for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, i 4 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 and job descriptions for the
subordinate employees, the beneficiary manages two employees who appear to be performing the tasks
necessary to produce a product or to provide a service, i.e.,buying and selling products. In view of the above,
the beneficiary wouldappe~r 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'
"primarily" perfonn 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. 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 professionai employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree asa minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8U.S.C. § 11 OI{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, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced typein a given field gained by a prolongedcourse 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 term is
'defined above. In the instant case, the petitioner has' not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of a "senior buyer" and a "sales manager," who are the beneficiary's
subordinate employees. Therefore, the petitioner has not established that the beneficiary will be employed
primarily in a managerial capacity.2
2While 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 term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
SRC 05 059 51476
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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
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary does 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 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.
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 prop9rtion of the
beneficiary's daily duties attriquted 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 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 manager of non-professional employees. 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 4educe whether the beneficiary is primarily
performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,
24 (D.D.C. 1999).
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Beyond the deCision of the director, a related issue is whether the petitioner has established that it still has a
qualifying relationship with the foreign entity.
The regulation at 8 C.F.R. § 2l4.2(l)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign 'entity are still qualifying organizations as
defined in paragraph (l)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(l)(1)(ii)(G) gefines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defmed, in part,.as a corporation "of which a parent owns, directly or mdirectly, more than half of
the entity and controls the entity."
In the initial Form 1-129 petition, the petitioner asserts that it is a wholly owned subsidiary of the foreign
entity. In support of this assertion, the petitioner provided organizational documents, including a stock
certificate issued to the foreign entity. However, there are serious inconsistencies in the record which
contradict the petitioner's assertion that it is 100% owned by the foreign entity. For example, the petitioner
provided a copy of its 2004 Texas Workforce' Commission Form C-1 in which the petitioner lists only the
beneficiary, and not the foreign entity, in the "owners or officers" section. The instructions for this form
, require the petitioner to list all owners and officers of the corporation. See Tex. Admin: Code tit. 40, §
815.107 (2002); Tex. Workforce Commn., Field Tax' Procedures Manual, Ch. 1, § 1.3.4.6. Also, the
petitioner provided a copy of its 2004 Texas Franchise Tax Public Information Report, Form05-102, in which
the petitioner responded with a "dash" to the following request for information: "List each corporation or
limited liability company, if any, that owns an interest often percent (10%) or more in [the petitioner). Enter
the information requested for each corporation or limited liability company.'i By marking this answer with a
"dash," the petitioner essentially averred that no corp~ration or limited liability company owns an interest of
10% or more in the petitioner, which is inconsistent with the pe,titioner's assertion that it is 100% owned by a
foreign company. The petitioner offers no explanation for these inconsistencies in the record. It is incumbent'
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Accordingly, due to the above described inconsistencies, the petitioner has not established that it has a
qualifying relationship with the foreign entity, and for this additional reason the petition may not be approved.
The initial approval of an L-1 A 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
SRC 0505951476
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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), afJ'd, 345 F.3d 683
(9th Cir. 200~); see alsoDor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAn 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 ofthe Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.