dismissed L-1A Case: Import/Distribution

PUBLICCOPV
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: WAC 0323050610 Office: CALIFORNIA SERVICE CENTER Date:
(X:T 022801
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.
~~/R~ert ~~, Chief
Administrative Appeals Office
www.uscis.gov
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Page 2
DISCUSSION: The Director, California 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
IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15XL). The petitioner is a corporation organized under the laws
of the State of California and is allegedly an importer and distributor of borosilicate, pharmaceutical glass,
bent-neck ampoule, and solar products.\
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, counsel to 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-I 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.
The regulation at 8 C.F.R. § 214.2(lX3) 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.
I According to California state corporate records, the petitioner's corporate status in California has been
"suspended." Therefore, since the corporation has lost all rights and powers to transact business, the company
can no longer be considered a legal entity in the United States. Therefore, if this appeal were not being
dismissed for the reasons set forth herein, this would call into question the petitioner's continued eligibility for
the benefit sought.
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(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 States need not be the
same work which the alien performed abroad.
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 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101(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 the supervisor's supervisory
duties unless'the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § IIOI(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.
The petitioner does not clarify in the initial petition whether it is claiming that the beneficiary will be
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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 petitioner may not claim that a beneficiary will 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 a letter dated August 4, 2003 as follows:
1. [The beneficiary] determines company's policies and establishes business goals.
With the business nature in mind, [the beneficiary] considers the company's
marketing capability, financial capability and human resource. [The beneficiary]
considers competitors' advantage and disadvantages of marketing and financial
capabilities and human resource. Furthermore, he takes into consideration the social
and economic environment here in the United States. Based upon all of the above,
[the beneficiary] determines and formulates the company's policies: product policy,
pricing policy, distribution policy, promotion policy, financial policy and human
resource policy. And he sets forth the company's business goals, including market
share and revenue and profit they strive to reach in each fiscal year.
2. [The beneficiary] directs the subordinate management. [The beneficiary] assigns
authorities and responsibilities to the subordinate management. They will establish
their own objectives, working procedures and evaluation systems. [The beneficiary]
reviews marketing and financial reports to ensure that the company's objectives are
achieved. [The beneficiary] analyzes operations to evaluate company's performance
and to determine areas of cost reduction and program improvement. [The
beneficiary] directs financial and budget activities to fund operations and increase
efficiency. [The beneficiary] demands periodical written reports and routine oral
reports from the subordinate management.
3. [The beneficiary] exercises his discretionary authority in decision-making. If the
marketing environment greatly changes, he makes resolution [sic] to change the
company's business orientation or adjust the business goals. [The beneficiary] also
decides on the adjustment of product policy, pricing policy, distribution policy,
promotion policy, financial policy and human resource policy.
4. [The beneficiary] periodically reports to the parent company in China. [The
beneficiary] reports about the performance of the US subsidiary and business
opportunities here in the United States. Also, [the beneficiary] receives information
and instructions from the parent company.
The petitioner also submitted an organizational chart, which shows the beneficiary at the top of the
organization supervising one "general manager," who, in tum, is shown supervising one secretary. Finally,
the petitioner submitted California quarterly wage reports which indicate that the petitioner had employed a
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total of three people in 2002 and in the first quarter of 2003. The petitioner did not submit a wage report for
the second quarter of 2003, or provide any evidence that the petitioner employed anyone as of the date the
petition was filed, i.e., August 6, 2003.
On October 25, 2003, the director requested additional evidence. The director requested, inter alia, more
detailed descriptions of the beneficiary's job duties, the duties of the subordinate employees, and the
petitioner's organization.
In response, counsel submitted a letter dated January 14, 2004 III which the petitioner's two claimed
subordinate employees are described as follows:
[The general manager] is in charge of the overall management of the US subsidiary company,
establishing the operation of the business, hiring and firing employees, developing marketing
strategies and business contacts. He reports to the beneficiary.
* * *
The job duties of the secretary include but [are] not limited to answering telephone calls,
schedul[ing] meetings for the general manager and the president, receiving and sending
mails, data processing and documents filing.
On February 5, 2004, 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, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive or
manager.
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. § 214.2(1)(3)(ii). The petitioner's description ofthe 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. 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 petitioner may not claim that the beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections 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 the beneficiary'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 will determine "policies;" establish "business
goals;" establish his subordinates' objectives and working procedures; and review "marketing and financial
reports." However, the petitioner does not specifically define these policies, goals, procedures, and objectives
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and fails to explain who, exactly, will prepare the marketing and financial reports. It is also not credible that
the beneficiary would spend a significant portion of his time directing "the subordinate management" when
the record fails to establish that the petitioner had any employees at the time the petition was filed. 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 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 reiterating the 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 ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Corom. 1972).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to him. This is particularly important in this matter because some 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 that the beneficiary will make
decisions regarding pricing, products, distribution, human resources, and finances. However, such duties
constitute administrative or operational tasks when the tasks inherent to these duties are performed by the
beneficiary. As the organizational chart and job descriptions for the subordinate employees fail to identify
any employees who will relieve the beneficiary of the need to perform the non-qualifying tasks inherent to
these duties, it must be concluded that he will perform these tasks. Not only are these subordinate employees
not described as performing these non-qualifying tasks for the beneficiary, the very existence of these
employees has not been established given that the petitioner failed to submit any evidence that it employed
anyone after the first quarter of 2003. As the petitioner has not established how much time the beneficiary
will devote to non-qualifying tasks, it cannot be confmned that he will be "primarily" employed as a manager.
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" perform the enumerated managerial or executive duties); see
also Matter ofChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
the beneficiary appears to supervise a staff of two employees. However, the petitioner has not established
that the "general manager" is primarily engaged in performing supervisory or managerial duties. To the
contrary, it appears that this vaguely described employee is performing the tasks necessary to produce a
product or to provide a service. It is simply not credible that a business of this nature would require a
subordinate supervisor to primarily supervise a single secretary, and it appears that the beneficiary is more
likely than not supervising both of these individuals. Inflated job titles and artificial tiers of subordinate
employees are not probative and will not establish that an organization is sufficiently complex to support a
managerial position. Regardless, as explained above, the record is devoid of evidence that the petitioner
actually employed anyone after the first quarter of 2003. While the petitioner submitted wage reports
indicating that it employed three people, all of this evidence predates March 31, 2003. The instant petition
was filed on August 6, 2003. Therefore, it has not been established that the petitioner has any employees.
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R.
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§ 103.2(b)(2)(i). 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 Treasure Craft of California, 14
I&N Dec. 190.
Therefore, even assuming that the petitioner had employees at the time the instant petition was filed, the
beneficiary would appear to be 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
professional. 101(a)(44)(A)(iv) of the Act; see also Matter ofChurch 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 two claimed subordinate positions the petitioner has not established that the
beneficiary will manage professional employees.
2
Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity?
2In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(aX32), 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).
3While the petitioner has not argued that the beneficiary will manage 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)(3Xii). 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 will manage 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 will primarily be a first-line supervisor of non-professional employees and/or will be engaged in
performing non-qualifying operational or administrative tasks. Absent aclear 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 deduce whether the beneficiary will primarily perform 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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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 will do on a day-to-day
basis. Moreover, as explained above, it appears that the beneficiary will be performing the tasks necessary to
produce a product or to provide a service and/or will be 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.
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign employer. The regulation at 8 C.F.R. § 214.2(lX3)(i) states that a petition filed on Form 1-129
shall be accompanied by:
Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(I)(ii)(G) ofthis section.
Title 8 C.F.R. § 214.2(i)(l)(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 definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (1)(I)(ii) of this section" and "is or will be doing business." "Doing
business" has been defined 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 it was engaged in the regular, systematic, and continuous
provision of goods and/or services at the time the instant petition was filed on August 6, 2003. All of the business
documents submitted by the petitioner concern its business activities in January 2003 or before. The record is
devoid of any evidence of current business activity. While the petitioner did submit current bank statements and
telephone bills, these documents do not establish that the petitioner was engaged in the regular, systematic, and
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continuous provision of goods and/or services. Furthermore, as explained above, the record is devoid of any
evidence that the petitioner had employees after March 2003.
Accordingly, as the petitioner has failed to establish that it was "doing business" at the time the petition was
filed, the petitioner has not established that it has a 'qualifying relationship with the foreign entity, 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.CaI. 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,S U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.