dismissed L-1A Case: Heavy Machinery Export

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
Office: TEXAS SERVICE CENTER
MAR 062007Date:SRC 05 19051495
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PUBLIC COpy
FILE:
INRE: 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)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
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__Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 19051495
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 appeal will be rejected as
untimely filed.
The petitioner, a Florida limited liability company, claims to be an affiliate of Tracto Bil, c.A., located in
Venezuela. The petitioner stated that the United States entity is engaged in the purchase and export of
heavy machinery and tractors. Accordingly, the United States entity petitioned Citizenship and
Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA)
pursuant to section 101(a)(15)(L) of the Act (the Act), 8 U.S.c. § 1101(a)(15)(L). 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 in order to continue to fill the position of manager.
On November 18, 2005, the acting director denied the petition concluding that the record contains
insufficient evidence to demonstrate that the beneficiary will be employed in a managerial or executive
capacity
Under the regulations, an affected party has 30 days from the date of an adverse decision to file an appeal.
See 8 CFR § 103.3(a)(2). If the adverse decision was served by mail, an additional three-day period is
added to the prescribed period. See 8 CFR § 103.5a(b). In accordance with 8 C.F.R. § 103.2(a)(7)(i) an
application received in a CIS office shall be stamped to show the time and date of actual receipt, if it is
properly signed, executed, and accompanied by the correct file. For calculating the date of filing, the
appeal shall be regarded as properly filed on the date it is so stamped by the service center or district
office.
The record reflects that the director's decision of November 18, 2005 was sent to the petitioner at its
address of record. According to the date stamp on the Form 1-290B Notice of Appeal, the appeal was
received 52 days later on January 9, 2005. On December 21,2005, the petitioner timely submitted Form
1-290B to AAO and appealed the decision of the director.' Thus, the appeal was untimely filed.
Moreover, in reviewing the merits of the appeal, the instant petition was properly denied. On appeal, the
petitioner states that the beneficiary is employed in a managerial capacity even though the beneficiary is
the only employee of the U.S. company. The petitioner further states that the beneficiary is employed in a
managerial or executive capacity because the beneficiary "does have authority over the day to day
operations beyond the level normally vested in a first line supervisor." The petitioner further states that
"a liberal definition of managerial and executive applies when the transferred is coming to set up a new
U.S. office." Finally, the petitioner states that even if the beneficiary did not meet the requirements of a
1 On December 21, 2005, the AAO rejected the Form 1-290B and returned the form to the petitioner
stating that the appeal must be submitted to the Service Center or Field Office that rendered the decision.
The directions of the denial decision, dated November 18, 2005, state that "if an appeal is desired, the
Form 1-290B Notice of Appeal shall be executed and filed with this office, together with the required
fee." The petitioner subsequently filed the Form 1-290B Notice of Appeal and it was received as properly
filed by CIS on January 9, 2006.
SRC 05 19051495
Page 3
manager, "he would easily meet the requirement of an executive since his duties are consistent with the
regulation."
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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 definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
On review, the petitioner 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. For example, the petitioner states
that the beneficiary's duties include: "administer the day to day operations of the business," and
"exercises wide latitude in discretionary decision-making." Reciting the beneficiary's vague job
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
The job description also includes several non-qualifying duties such as the beneficiary is responsible for
"procuring, selecting and interviewing vendors;" "visiting supplier's plants to examine the equipment and
parts;" "evaluating suppliers based on price, quality, selections and reliability;" "negotiating contracts
with suppliers;" "maintaining computerized records of equipment purchased, costs, delivery, equipment
performance and inventories;" "overseeing all aspects of the export/import transaction including
preparation of bills of lading, obtaining import licenses, payment of applicable imposts and taxes;" and
"managing the company's administrative matters such as accounts payable and accountant receivables,
project case flow, etc." As the only employee of the U.S. company, it appears that the beneficiary will be
primarily providing the services of the business rather then directing such activities through subordinate
employees. An employee who "primarily" performs the tasks necessary to produce a product or provide a
service 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 petitioner indicated on the Form 1-129 that the company employed one employee, the beneficiary. A
critical analysis of the nature of the petitioner's business undermines the petitioner's assertion that the
beneficiary is employed in a managerial or executive capacity. Rather, it appears from the record that the
beneficiary is the only individual performing any marketing and sales functions, finance operations and
SRC 05 19051495
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business development activities, and all of the various operational tasks inherent in operating a business
on a daily basis, such as purchasing inventory, paying bills, handling customer transactions, negotiating
contracts and managing the export of the inventory. Based on the record of proceeding, the beneficiary's
job duties are principally composed of non-qualifying duties that preclude him from functioning in a
primarily managerial or executive role.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.c. § 1101(a)(44)(C), if staffing levels are used as a
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take
into account the reasonable needs of the organization, in light of the overall purpose and stage of
development of the organization. In the present matter, however, the regulations provide strict
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the
organizational structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The
regulation at 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 CIS
regulations that allows for an extension of this one-year period, therefore the petitioner's assertion that the
more lenient "new office" standard applies is not persuasive. 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 petitioner has
not reached the point that it can employ the beneficiary in a predominantly managerial or executive
position.
The petitioner indicated in the record that the beneficiary is the only employee for the United States
company, and he does not supervise any subordinate staff. 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, 8 U.S.c. § 1101(a)(44)(A)(ii). 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. An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v.
INS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988». In this matter, the petitioner has not provided
evidence that the beneficiary manages an essential function.
Finally, on appeal, the petitioner asserts that the beneficiary will perform in an executive capacity. If the
position offered to the beneficiary is executive in 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, 8 U.S.c. § 1101(a)(44)(B). 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 managerial employees for the
SRC 05 19051495
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beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the
organization rather than the day-to-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. A managerial or executive
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. See Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988). In the instant matter, the petitioner has not
established evidence that the beneficiary is in an executive capacity with the U.S. entity.
Beyond the decision of the director, the petitioner failed to provide sufficient evidence to establish that a
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(l5)(L) of the Act; 8
C.F.R. § 214.2(1). In the instant petition, the petitioner claims that the U.S. e~I% owned and
controlled by the foreign parent company and 49% owned and controlled by _I The petitioner
stated that the foreign entity is 100% owned by and claimed that the U.S. and foreign
entities are affiliates.
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of
Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the
direct or indirect legal right of possession of the assets of an entity with full power and authority to
control; control means the direct or indirect legal right and authority to direct the establishment,
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at
595.
The petitioner did not submit documentary evidence of the ownership and control of either the U.S. or
foreign company. 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 ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In addition, the petitioner submitted the IRS Form 1120, U.S. Corporation Income Tax Return, for 2004
whereby the petitioner responded "no" to the question as to whether a foreign person owns directly or
indirectly at least 25% of the total voting power of all classes of stock of the corporation entitled to vote
or the total value of all classes of stock of the corporation. According to the IRS Form 1120, it appears
that the petitioner is not owned by any foreign entity which is required in order to establish the claimed
qualifying relationship between the petitioner and a foreign company. 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). The petitioner has
SRC 05 19051495
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not resolved this conflicting information. As the appeal will be rejected as untimely filed, the AAO notes
this deficiency for the record and will not further discuss the issue.
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),
afJ'd. 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).
Any appeal that is not filed within the time allowed must be rejected as improperly filed. 8 C.F.R. §
103.3(a)(2)(v)(B)(1).
ORDER: The appeal is rejected as untimely filed.