dismissed L-1A Case: Heavy Equipment

p(JBLICC6pY
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 0411951879
IN RE: Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: OCT 02 2081
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 BENEFICIARY:
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~&ef
Administrative Appeals Office
www.uscis.gov
SRC 04 11951879
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 equipment
manager to be employed at a new office in the United States as an L-l A nonimmigrant intracompany
transferee pursuant to section IOI(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c. §
1101(a)(l5)(L). The petitioner, a corporation organized under the laws of the State of Texas, claims to be in
the heavy equipment business.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary was
employed abroad in a primarily executive or managerial capacity for one year in the three-year period
preceding the filing of the instant petition.
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 was employed abroad as an executive or a manager. The petitioner also submits additional
evidence including a letter from the foreign entity describing the beneficiary's purported duties abroad.
To establish eligibility for the L-l 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. ill 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 (l)(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 himlher to perform the intended
services in the United States; however, the work in the United States need not be the
SRC 04 11951879
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same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the 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 employment involved
executive 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)(l)(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 primary issue in the present matter is whether the petitioner has established that the beneficiary was
employed abroad in a primarily managerial or executive capacity for one year within the preceding three
years.
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
SRC 0411951879
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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 lIexecutive capacityll 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.
A petitioner must clearly describe the duties performed by the beneficiary and indicate whether such duties
were either in an executive or managerial capacity. The petitioner must demonstrate that the beneficiary's
responsibilities will meet the requirements of one or the other capacity. A petitioner may not claim that a
beneficiary has been employed as a hybrid lIexecutive/managerlland rely on partial sections of the two
statutory definitions. Given that the petitioner does not specify whether the beneficiary was employed as an
executive or a manager, the AAO will consider both classifications.
The petitioner described beneficiary's duties abroad in the Form 1-129as follows:
Review equipment and check performance; advise mechanics regarding necessary repairs;
oreder [sic] parts, components, and equipments [sic].
On March 31, 2004, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the foreign entity and information regarding the duties and educational backgrounds
of the foreign entity's other employees.
In response, the petitioner submitted a document titled lIorganizationalchartll which lists 20 employees and
identifies the beneficiary as the lIequipment manager." However, the chart is merely a list of employees and
corresponding job titles. The chart does not show which employees were supervised by the beneficiary, if
any, and does not describe the duties of any of the workers.
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On April 12, 2004, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary was employed abroad in a primarily executive or managerial capacity for one
year in the three-year period preceding the filing of the instant petition.
On appeal, counsel to the petitioner asserts that the beneficiary was employed abroad as an executive or a
manager. Counsel submits additional evidence, including a letter dated April 20, 2004 from the foreign entity
further describing the beneficiary's purported duties abroad. The letter describes the beneficiary's duties
abroad as follows:
• Planning, developing and implementing operations strategy;
• Implementation and Performance of Preventative Maintenance Services of our fleet
according to the manufacturer's specifications;
• Keeping up with the manufacturer's reps on recalls and/or warranties and other
related topics concerning our equipment;
• Implementation and training of the Operational Department personnel in I.S.0. rules
and quality control procedures;
• Formulating and irnplement[ing] safety rules of the operational department and drug
screening;
• Recommending the acquisition and/or disposal of equipment for our fleet;
• Recommending the firing and/or hiring of personnel working in the operational
department;
• Supervising other employees such as the Technician Supervisor; and
• Ensuring that his department operates in an efficient[,] productive and profitable
manner.
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. § 2l4.2(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. ld.
In this matter, the petitioner's description of the beneficiary's job duties has failed to establish that the
beneficiary acted 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 did on a
day-to-day basis. For example, the petitioner states that the beneficiary engaged in U[p]lanning,developing
and implementing operations strategy" and "ensuring that his department operates in an efficient[,].productive
and profitable manner.U However, the petitioner did not explain what, exactly, the beneficiary did in
accomplishing these tasks or to specifically describe the foreign entity's "operations strategy." The fact that
the petitioner has given the beneficiary a managerial title and has prepared a vague job description which
includes lofty duties does not establish that the beneficiary was actually 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
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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).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary devoted to the many
duties ascribed to him. This is particularly important in this matter because most of the duties listed by the
petitioner appear to be non-qualifying administrative or operational tasks which do not rise to the level of
being managerial or executive in nature. For example, the petitioner states in the Form 1-129 that the
beneficiary "[r]eview[ed] equipment and check[ed] performance; advise[d] mechanics regarding necessary
repairs; [ordered] parts, components, and equipments [sic]." The foreign entity further states in the April 20,
2004 letter that the beneficiary implemented and performed preventative maintenance services, worked with
manufacturer representatives on recall and warranty matters, implemented and trained personnel on rules and
procedures, and recommended the acquisition and disposal of equipment. However, such duties constitute
administrative or operational tasks. As the petitioner has not established how much time the beneficiary
devoted to such non-qualifying tasks, it cannot be confirmed that he was "primarily" employed as a manager.
To the contrary, it appears that the beneficiary was primarily engaged in performing non-qualifying duties.
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; see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the document titled "organizational chart," the foreign entity appears to employ approximately 20
people. However, the petitioner has not explained which employees were supervised by the beneficiary, if
any, and has not described the duties of any of the workers listed in the chart even though this information
was specifically requested by the director in the Request for Evidence. Failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I03.2(b)(l 4).
While the job description for the beneficiary implies that he supervised the "technician supervisor" and,
perhaps, other employees, the petitioner has failed to establish that these employees were primarily engaged
in performing supervisory or managerial duties. To the contrary, it is more likely than not that all of the
supervised employees were performing the tasks necessary to produce a product or to provide a service. In
view of the above, the beneficiary would appear to have been primarily a first-line supervisor of non­
professional employees, the 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the skill level or
educational background required to perform the duties of the subordinate positions, the petitioner has not
established that the beneficiary managed professional employees.1 Therefore, the petitioner' has not
established that the beneficiary was employed primarily in a managerial capacity?
lIn evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor.
SRC 04 11951879
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Similarly, the petitioner has failed to establish that the beneficiary acted 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 IOl(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 acted primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
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, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged 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).
2While the petitioner has not argued that the beneficiary managed 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(1)(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 tasks related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties were managerial functions, if any,
and what proportion were non-managerial. Also, as explained above, the record establishes that the
beneficiary was primarily a first-line manager of non-professional employees and/or was performing the tasks
related to the function. 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 were managerial, nor can it
deduce whether the beneficiary was primarily performing 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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Moreover, as explained above, the beneficiary appears to have been primarily employed as a first-line
supervisor and/or was performing tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary was employed primarily in an executive capacity.
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition
as required by 8 C.F.R. § 2l4.2(l)(3)(v)(B), and the petition may not be approved for this reason.
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity because it has failed to establish that the foreign entity is "doing business" as defined in
the regulations.
Title 8 C.F.R. § 214.2(i)(1)(ii)(G) defines 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 (lXIXii) of this section" and "is or will be doing business." "Doing
business" is defmed in pertinent part as "the regular, systematic, and continuous provision of goods and/or
services."
In this matter, the petitioner has failed to establish that the foreign entity is engaged in the regular, systematic, and
continuous provision of goods and/or services. Other than a few organizational and licensing documents, the
petitioner submitted no evidence of business activity with the initial petition. On March 31, 2004, the director
requested additional evidence including proof that the foreign entity is currently doing business. In response, the
petitioner submitted less than 15 pages of untranslated documents which appear to be invoices and other
organizational documents for the foreign entity. However, because the petitioner failed to submit certified
translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's claim
that the foreign entity is "doing business." See 8 C.F.R. § 103.2(b)(3). Therefore, the evidence is not
probative and will not be accorded any weight in this proceeding.
Accordingly, as the petitioner has not established that the foreign entity is currently doing business, it has not
established that it has a qualifying relationship with the foreign entity, and the petition may not be approved
for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that the intended United States
operation, within one year of the approval of the petition, will support an executive or managerial position. 8
C.F.R. § 2l4.2(l)(3)(v)(C). The petitioner has not described with any specificity the proposed nature of the
office, the scope of the entity, its proposed organizational structure, its financial goals, the investment in the
United States operation, or the organizational structure of the foreign entity. The petitioner has only
described its goals vaguely as "maximize profit, create employment, develop new employment skills, expand
the industry, and develop enterprise." 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 Soffici, 22 I&N
Dec. 158,165 (Comm. 1998)(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190).
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Accordingly, the petitioner has failed to establish that the intended United States operation, within one year of
the approval of the petition, will support an executive or managerial position, and 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 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 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, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.