dismissed L-1A Case: Import And Distribution

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b 
 U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3000 
Wash~ngton, DC 20529 
identifying data deleted to 
prevent clearly unwmted 
 U. S. Citizenship 
invasion of pek~od pdv*~ 
 and Immigration 
PUBLrC COPY 
FILE: SRC 04 210 52346 Office: TEXAS SERVICE CENTER Date: AUG 0 1 n]06 
r 
IN RE: Petitioner: 
Beneficia 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. fj 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the dec~sion of the Administrative Appeals Office in your case. ~ll documents have been returned to the office 
that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
SRC 04 210 52346 
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 wjll be dismissed. 
The petitioner filed this nonimmigrant petition seelung to extend the employment of its chief executive 
officerlmanaging director 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. 5 1101(a)(15)(L). The petitioner, a 
Texas corporation, claims to be the subsidiary of ocated in Laudium, South 
Africa. The petitioner is described in the petition as an import and distribution company. 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. 
The director denied the petition concluding that the petitioner dill not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the 
director's decision is inconsistent with relevant law on the question of whether the beneficiary's duties qualify 
as those of a manager andlor executive, and further contends that relevant evidence was not considered by the 
director. In support of these contentions, counsel submits a brief and additional evidence. 
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 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. s 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) 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; 
(b) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous 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 
SRC 04 210 52346 
Page 3 
capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The issue in this matter is whether the beneficiary will be employed by the United States entity in a primarily 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of thersupervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
SRC 04 210 52346 
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In a letter dated July 27, 2004, the petitioner stated that the beneficiary is acting in the key role of chief 
executive officer and managing director of the U.S. entity. The petitioner also provided the following 
overview of the beneficiary's position: 
In this position [the beneficiary] has been responsible for overseeing and directing all daily 
operations of the business. These duties have included the hiring, firing, and training of all 
employees, coordinating and executing all marketing needs for the business and formulating 
& implementing all corporate policy and goals for the business. . . . 
[The beneficiary] is being offered to continue to work in the position of CEOManaging 
Director for our company in the United States. In this position he will continue to be 
responsible for formulating and implementing all corporate policy and goals, both executive 
and managerial. He will also continue to concentrate on the long-range goals of the company 
and direct the company to the successful attainment of those goals. Along with these duties 
he will also be responsible for hiring, firing, and training all employees as the company 
continues to grow. As the CEOManaging Director [the beneficiary] will also direct and 
coordinate all marketing & sales needs on behalf of the business. 
In support of the petition, the petitioner also submitted a franchise agreement with 
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f DallasRort 
Worth, under which the petitioner assumed the operation of a commercial cleaning usiness. On the Form 
1-129, the petitioner indicated that it currently employed eleven persons, yet its quarterly tax returns for the 
first two quarters of 2004 indicated that only one employee in addition to the beneficiary received wages. 
Consequently, the director issued a request for additional evidence on Septe,mber 21, 2004. The director 
asked the petitioner to submit all quarterly wage reports for 2004, along with an organization'al chart for the 
U.S. entity and details regarding its employees, including their position titles, duties, and level of education. 
' 
On December 10, 2004, the petitioner responded to the director's re uest. The petitioner explained that it had 
recently entered into a joint venture with a company called m& hich provides mirrored letters of credit. 
In support of this claimed relationship, a brochure was submitted describing the program, which 
referred to the beneficiary as a registered epresentative. No copy of the joint venture agreement was 
submitted. 
~dditionall~, the beneficiary submitted an organizational chart which showed that the beneficiary allegedly 
oversaw five employees. The chart also encompassed the various hierarchal structures of the Andice 
organization, and listed the educational degrees of selected employees. Other than listing position titles on 
the organizational chart, no additional information about the beneficiary's co-workers was provided. 
On December 28, 2004 the director denied the petition. The director noted that the evidence in the record did 
not support the petitioner's claim that the beneficiary's services were managerial in nature, nor did the current 
structure of the business support a managerial position. On appeal, counsel asserts that the director 
SRC 04 210 52396 
' Page 5 
erroneously penalized the petitioner based on the staffing levels of the organization, and asserts for the first 
time that the beneficiary was managing an essential function of the organization. 
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. fj 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 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 chooses to 
represent 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 initial description of duties provided by the petitioner in these proceedings did little to describe the 
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. In fact, the 
petitioner states that the beneficiary will simultaneously be responsible for formulating and implementing 
both managerial and executive policy. Despite the director's request for a more specific overview of all 
positions within the company and the duties associated therewith, the petitioner failed to provide a more 
detailed description of the beneficiary's position or that of fiis co-workers and subordinates. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
$ 103.2(b)(l4). As a result, the AAO is unable to determine the exact nature of the beneficiary's role in the 
petitioner's organization. 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 answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
 ,. 
v. Suva, 724 F. Supp. 1 103,1108 (E.D.N.Y. 1989), afd, 905 ~.2d 41 (2d. Cir. 1990). 
In addition, the petitioner claims to employ eleven persons, and claims that the beneficiary oversees the 
hiring, firing and training of all staff. Although the beneficiary is not required to supervise personnel, if it is 
claimed that his duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See $ 10 1 (a)(44)(A)(ii) of the Act. 
There .are two problems in determining whether the beneficiary oversees employees who are supervisory, 
professional, or managerial. First, it is unclear exactly who the beneficiary oversees. The Form 1-129 says 
the petitioner employed eleven persons at the time of 
 rly wage reports provided indicate 
that only the beneficiary and a second employee, 
 were on the petitioner's payroll. 
Finally, in response to the request for evidence, the petitioner submits an organizational chart listing five 
subordinates under the beneficiary, none of whom are listed on the petitioner's quarterly wage reports. 
- 
s not listed as an employee on the organizational chart. It is incumbent 
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 evidmce pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Additionally, though requested by the director, the petitloner did not provide additional details regarding the 
duties of any of the employees listed on the organ~zational chart, nor did it provide the level of education 
SRC 04 210 52346 
Page 6 
required to perform such duties. As previously stated, any failure to submit requested evidence that precludes 
, 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). Although the 
petitioner lists the various degrees possessed by a random selection of employees from the organizational 
chart, there is no evidence that these employees are the beneficiary's subordinates, nor is there evidence that 
a 
an advanced degree is required to perform the duties of their positions such that they could be classified as 
professionals. Furthermore, the petitioner has failed to show that any of the employees identified in the 
record supervise subordinate staff members or manage a clearly defined department or function of the 
petitioner, such that they could be' classified as managers or supervisors. Thus, the petitioner's vague 
response and failure to clarify who actually works for the petitioner, as well as its failure,to identify the 
beneficiary's subordinates, precludes the AAO from deterinining that the beneficiary in fact supervises a 
subordinate staff and that those employees are supervisory, professional, or managerial, as,required by section 
101 (a)(44)(A)(ii) of the Act. 
Moreover, counsel asserts for the first time on appeal that the beneficiary is a function manager. 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. 9 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, 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. 8 
C.F.R. tj 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 duties related to the function. 
An employee who primarily performs the tasks necessary to produce a product or t~'~rovide 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. 
More importantly, however, this claimed capacity of the beneficiary was not Previously asserte'd or supported 
by evidence prior to adjudication. On appeal, a petitioner cannot offer a new position to the beneficiary, or 
materially change a position's title, 'its level of authority within the organizational hierarchy, or the associated 
job responsibilities. The petitioner must establish that the position offered to the beneficiary when the petitibn 
was filed mgriti classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 2'49 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to Citizenship and Immigration Services (CIS) requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Therefore, even if the petitioner had submitted 
evidence to estlblish that the beneficiary acted as a functionmanager, this line of inquiry would not have 
been pursued. 
Counsel's final assertion is that the director erroneously relied on the staffing levels of the petitioner as a basis 
for denying the petition. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C), if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or executive 
SRC 04 2 10 52346 
Page 7 
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. 9 214.2(1)(14)(ii)(D). 
 The 
regulation at 8 C.F.R. 8 214.2(1)(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. 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 AAO, upon review of ttie record of proceeding, concurs with the director's finding that the petitioner has 
not established that the beneficiary will be employed in either a primarily managerial or executive capacity. 
At the time of filing, the record indicated that the petitioner was operating a commercial cleaning business 
under a franchise agreement, and employed only one additional employee in addition to the beneficiary. Due 
to the nature of the janitorial services set forth in the agreement and subsequent invoices submitted for the 
record, it appears that the beneficiary logically would be performing such janitorial services since there is no 
evidence to indicate that a large staff of subordinates would relieve him from performing such services. 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. Matter of Church Scientology International, 
19 I&N Dec. at 604. 
For this reason, the petition may not be approved. 
Beyond the decision of the director, the lack of documentation of the petitioner's ownership raises the issue of 
whether there is a qualifying relationship between the U.S. entity and the foreign entity pursuant to 8 C.F.R. 
214.2(1)(l)(ii)(G). 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 ~ntrrnational, 19 I&N Dec. 
593; see also Matter of ~iemens'~edica1 Systems, Inc., 19 I&N Dec. 362 (BIA 1986); ~atter 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. 
In this matter, the petitioner claims that it is a wholly-owned subsidiary of the foreign entity, yet submits no 
documentation in support of this claimed relationship. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these-proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craff of cal&rnia, 14 I&N Dec. 190 (Reg. 
Cqmm. 1972)). Without full disclosure of all relevant documents, CIS is unable to determine the elements of 
ownership and control. For this additional reason, the petition may not be approved. 
 . 
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SRC 04 210 52346 
Page 8 
Another issue in this proceeding, also not raised by the director, is whether the petitioner is doing business as 
defined by the regulations. The term "doing business" is defined in the regulations as "the regular, systematic, 
and continuous provision of goods andor services by a qualifying organization and does not include the mere 
, , 
 presence of an agent or office of the qualifying organization in the United States and 'abroad." 8 C.F.R. 
tj 214.2(1)(l)(ii). The petitioner submits an assortment of invoices which, for example, bill customers for a 
variety of products and services including cleaning services, a mobile phone, hair care products, and cutlery 
sets. The exact nature of the petitioner's business is not specified and this lack of specificity confuses the 
record. The petitioner claims to be engaged in import and distribution. However, it submits a. franchise 
agreement with a commercial cleaning company into evidence, then subsequently asserts that it has entered a 
joint venture with a company which provides mirrored lines of credit. No evidence of this, joint venture, other 
than the petitioner's written statement, has been submitted. In addition, there is no explanation as'to why the 
petitioner submits an invoice for hair products and houseware products when it allegedly is providing 
cleaning services andor mirrored lines of credit as a representative of Andice. 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 of Ho, 19 I&N Dec. at 591-92. 
~~ain, the regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the intended United States.operation one year 
, within the date of approval of the petition to establish the new office. Furthermore, at the time the petitioner 
seeks an extension of the new office petition, the regulations at 8 C.F.R. fj 214.2(1)(14)(ii)(B) requires the 
petitioner to demonstrate that it has been doing business for the previous year. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business is not sufficiently operational 
after one year, 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. 
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), afd, 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 Ad0 reviews 
appeals on a de novo basis). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. fj 1361. Here, that bui-den has 
not been met. 
ORDER: The appeal is dismissed. 
1