dismissed L-1A Case: Import/Export

identifyingdata deletedto
prevent clearly unwarranted
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PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave, N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 04 099 51412 Office: TEXAS SERVICE CENTER Date: ,JuL 2 7 ZOOT
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
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.
~
Ro ert P. Wiemann, Chief
bAdministrative Appeals Office
www.uscis.gov
SRC 04 09951412
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 extend the employment of its administrative
manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner, a Florida corporation,
claims to be the subsidiary of Corporacion Goncab, S.A., located in Miranda, Venezuela. The petitioner
claims to be engaged in the import and export of household products. 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 for an additional two years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been
and will continue to 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, the petitioner contends that the denial was
contrary to federal case law, and contends that the director placed undue emphasis on the size of the
petitioner's enterprise. In support of these contentions, the petitioner submits a detailed brief.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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 him/her to perform the intended
SRC 04 09951412
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services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening ofa
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 III
paragraph (1)(1)(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
capacity; and
(E) Evidence of the financial status of the United States operation.
The 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. § 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
SRC 0409951412
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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 "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 submitted the following overview of the beneficiary's duties in the United States in a letter
from the foreign entity dated February 18,2004:
The control of the employees and future employees employed with the company.
Training of employees (hiring and firing of employees);
Managing the finances;
Planning, developing, and implementing company strategy;
Planning the future expansion of the business and possibility of franchising the said business;
Developing and implementing policies and procedures for company operations;
Determining mark-up percentages necessary to insure profit based on estimated budget, profit
goals and average rate of client acquisition.
Developing policies and procedures for procurement of services;
Oversee the negotiating of contracts with clients;
Authorizing of purchase of contract services based on estimates;
Formulating pricing policies for sales of services;
Review statements, invoices, bill of landing [sic], and insurance certificates
Coordinate the purchase of services, supervising the contact with different vendors to attain
the desired services;
Plan business objectives, develop organizations policies and establish responsibilities and
procedures for attain objectives with the business operations of internet services business;
Review activity reports and financial statements to determine process and status in attaining
objectives and revises objectives and plans accordance with current conditions;
Direct and coordinate formulation of financial programs to provide funding of new or
continuing operations to maximize returns on investments and increase productivity[.]
SRC 04 09951412
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The petitioner submitted an organizational chart for the U.s. company which identifies a company president,
who supervises the beneficiary and a sales manager. There are no subordinate employees depicted under the
beneficiary's position.
On March 19, 2004, the director requested additional evidence pertaining to the other employees of the
petitioner, including their positions within the petitioner's organizational hierarchy as well as their
educational backgrounds. The director also requested evidence discussing how the beneficiary would refrain
from performing the day-to-day duties of the petitioner.
In response, the petitioner submitted an undated letter which repeated the list of the beneficiary's duties set
forth above. In addition, the petitioner explained that the beneficiary, as administrative manager, oversaw
three employees; namely: a sales manager, a budget analyst, and an administrative secretary. An attachment
to this letter also provide a brief description of the duties of each of these persons as well as a fourth
employee, the petitioner's president. Finally, the attachment indicated that the sales manager and budget
analyst both possessed a bachelor's degree in business administration.
On June 17, 2004, the director denied the petition. The director found that the petitioner had not established
that the beneficiary would exercise authority over subordinate employees or manage an essential function or
component of the organization. The director further noted that the beneficiary would be performing the day­
to-day duties of the petitioner.
On appeal, the petitioner contends that the petitioner had established that the beneficiary was employed in a
qualifying capacity, and alleges that the director's decision was erroneous. On appeal, the petitioner submits
an updated description of the beneficiary's duties, which provided a breakdown of the percentage of time the
beneficiary devoted to each of the stated duties.
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 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.
In this matter, the petitioner provided a list in its initial letter of support of the beneficiary's duties in the
United States. In response to the director's request for evidence supporting a claim that the beneficiary would
not be engaged in the day-to-day duties of the business, the petitioner merely resubmitted the same list of
duties that it had initially provided. Based on the current record, therefore, the AAO is unable to determine
whether the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the
beneficiary primarily performs non-managerial administrative or operational duties. The petitioner's
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923
F.2d 175, 177 (D.C. Cir. 1991).
SRC 04 09951412
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Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and
(B) of the Act. As stated above, the petitioner fails to document what proportion of the beneficiary's duties
would be managerial functions and what proportion would be non-managerial. The petitioner lists the
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify
the time the beneficiary spends on them. This failure of documentation is important because several of the
beneficiary's daily tasks, such as "managing the finances ," "coordinate [ing] the purchase of services,
supervising the contact with different vendors to attain the desired services ," and "overseeing the negotiating
of contracts with clients" do not fall directly under traditional managerial duties as defined in the statute. For
this reason, the AAO cannot determine whether the beneficiary is 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). 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. Sava, 724 F. Supp. 1103 ,
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990) .
In an attempt to clarify this question, the petitioner provided an updated description of duties on appeal,
including a percentage breakdown of the time devoted to each duty. Specifically, the petitioner stated that his
duties were as follows:
(25%) Manage the overall activities of the company, make operation decisions for the
company, and supervise the administration and the finance of the company.
(20%) Supervise as well as take part in the process of hiring, promoting, demoting, and firing
of any employees in the company.
(20%) Manage and direct the business' daily activities with emphasis in the implementation
of company policies.
(20%) Supervises and Control the work of the personnel under his charge.
(5%) To develop the company's long-range goal objectives directed to the expansion of the
company into the Latin American and European markets.
(5%) Maintain regular communication with the parent company.
(5%) Determine the needs of the company including the purchase of any equipment needed
for the successful operation of the company.
Upon review , the newly-submitted description of duties is still insufficient to establish the beneficiary's
eligibility for the benefit sought. The petitioner attempts to supplement the record, yet once again provides
generalized statements that fail to identify the exact nature of the beneficiary's duties. As previously stated,
SRC 04 09951412
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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. Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. at 1108. Furthermore, the duties identified on appeal seem to quote the regulatory definitions as
opposed to articulating the exact nature of the beneficiary's tasks. Merely relying on a list of broad duties as
the basis for claiming that the beneficiary is qualified for the benefit sought is insufficient. Repeating the
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v.
Sava, 724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
Furthermore, the petitioner claims that 200/0 of the beneficiary's time is devoted to supervising and controlling
the work of subordinates, and the evidence submitted in response to the request for evidence indicates that the
beneficiary is supervising three subordinate employees. However, upon review of the evidence submitted
with the initial petition, it appears that the beneficiary had no subordinate staff members at the time of the
filing of the petition.
At the time of filing, the petitioner claimed that its president supervised two employees: the beneficiary and a
sales person. The sales person was not a subordinate employee of the beneficiary, and the organizational
chart indicated that he did not supervise any employees. In response to the request for evidence, however, the
petitioner claimed that the beneficia supervise the sales manager; he
budget analyst; and the executive secretary.
Upon review, the AAO notes that according to the organizational chart, the sales manager was a lateral
employee to the beneficiary, and not his subordinate at the time of filing. Furthermore, there was no mention
of the budget analyst or the executive secretary at the time of filing, and no evidence of wages paid to these
persons at the time of filing is contained in the record. As a result, the AAO cannot conclude that the
beneficiary was supervising a subordinate staff at the time of filing.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the
benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for evidence, 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 its associated job responsibilities. The petitioner must
establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978).
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather
than seek approval of a petition that is not supported by the facts in the record. The information provided by
the petitioner in its response to the director's request for further evidence added a list of subordinate staff
members not supervised by the beneficiary at the time of filing. While the AAO notes that the petitioner may
have hired these additional employees since' the filing of the petition, this factor is irrelevant, since the
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts.
Id.
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States operation one year within the
date of approval of the petition to support an executive or managerial position. There is no provision in CIS
SRC 04 09951412
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regulations that allows for an extension of this one-year period. Although the petitioner demonstrates on
appeal that the it has since hired new employees, this evidence is insufficient to establish eligibility in this
matter. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or
beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Based on the evidence
furnished, it cannot be found that the beneficiary has been or will be employed primarily in a qualifying
managerial or executive capacity. For this reason, the petition may not be approved.
Beyond the decision of the director, the petitioner has failed to establish that it has been doing business for the
previous year. The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(H) defines the term "doing business" as "the
regular, systematic, and continuous provision of goods and/or 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."
In this matter, the petitioner claims that it is engaged in the import and export of household products. In the
course of examining whether a petitioning company has been doing business as an import and export firm, it
is reasonable to expect the company produce copies of documents that are required in the daily operation of
the enterprise due to routine regulatory oversight. Upon the importation of goods into the United States, the
Customs Form 7501, Entry Summary, serves to classify the goods under the Harmonized Tariff Schedules of
the United States and to ascertain customs duties and taxes. The Customs Form 301, Customs Bond, serves
to secure the payment of import duties and taxes upon entry of the goods into the United States. According to
19 C.F.R. § 144.12, the Customs Form 7501 shall show the value, classification, and rate of duty for the
imported goods as approved by the port director at the time the entry summary is filed. The regulation at 19
C.F.R. § 144.13 states that the Customs Form 301 will be filed in the amount required by the port director to
support the entry documentation. Although customs brokers or agents are frequently utilized in the import
process, the ultimate consignee should have access to these forms since they are liable for all import duties
and taxes. Any company that is doing business through the regular, systematic, and continuous provision of
goods through importation may reasonably be expected to submit copies of these forms to show that they are
doing business as an import firm.
In this matter, no such documents have been submitted in support of the claim that the petitioner is engaged in
the business it claims. Although the petitioner has submitted corporate bank statements, bank statements are
not representative of continuous provision of goods and/or services as required by the regulations. The
definition of doing business clearly requires the continuous provision of goods and services, yet the petitioner
has failed to submit evidence establishing its business activities for the first year of operations. The
beneficiary was granted a one-year stay in which to open a new office. There is no evidence of any business
activity during this period. The petitioner, therefore, has not established that it was regularly, systematically,
and continuously providing goods and/or services during the entire year preceding the filing of the extension
request. For this additional reason, the visa petition may not be approved.
Additionally, the record contains some conflicting evidence with regard to the ownership of the petitioner.
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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
SRC 04 099 51412
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Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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
ofChurch Scientology International, 19 I&N Dec. at 595.
The initial owners of the petitioner, according to the Articles of Incorporation adopted on May 2, 2002, were
the beneficiary and , both of whom owned 250 shares. An amendment to the original
Articles of Incorporation, adopted on January 5, 2003, changed the ownership, and reassigned the shares as
follows:
52%
24%
24%
In support of this change in ownership, the petitioner submitted unsigned share certificates, numbered 1, 2
and 3, to corroborate these percentages of ownership.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all
relevant documents, CIS is unable to determine the elements of ownership and control.
In this matter, the failure of the petitioner to submit the stock ledger leads the AAO to question whether the
above claim by the petitioner is legitimate. Specifically, the stock certificates submitted in support of the
petitioner's current ownership are numbered 1,2 and 3. However, according to the evidence contained in the
record, the original issue of shares was dispersed to the beneficiary and I, who would have
held certificate numbers 1 and 2. If the legitimate transfer of shares had taken place, the reissued shares as
claimed above should have been issued on certificate numbers 3, 4 and 5, and the stock ledger would
corroborate this transfer.
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). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo, 19
I&N Dec. 582, 591 (BIA 1988). Since the petitioner has not sufficiently explained this inconsistency, the
SRC 04 099 51412
Page 10
AAO cannot conclude that a qualifying relationship exists between the parties. For this additional reason, the
petition cannot be approved.
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).
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 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003).
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. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.