dismissed L-1A Case: Import/Export

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 00 I 50448 Office: TEXAS SERVICE CENTER Date: AUG 06 2007
IN RE: 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)(l5)(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 .
.,..-~~'""~-'_. .
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Robe . iemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 001 50448
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 visa petition seeking to extend the employment of its president as an L­
lA 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 is a corporation organized under the laws
of the State of Florida and is allegedly an import/export business. 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 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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive. In support of this assertion, the petitioner submits
a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. 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 (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies 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.
SRC 06 001 50448
Page 3
The regulation at 8 C.F.R. § 2l4.2(l)(l4)(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 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 capacity; and
(E) Evidence of the financial status of the United States operation.
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. § 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 the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § I 101 (a)(44)(B), defines the term "executive capacity" as an
SRC 06 001 50448
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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 the beneficiary is claiming to be 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. While counsel asserts on appeal that the beneficiary will be employed in an
executive capacity, counsel does not clearly state that the beneficiary will not also be employed in a
managerial capacity. Given the lack of clarity, the AAO will consider the petition as if the petitioner is
claiming that the beneficiary will be employed in either an executive or a managerial capacity and will
consider both classifications.
The beneficiary's job duties as "president" were described in the Form 1-129, and in a letter dated September
28, 2005 appended to the petition, as follows:
As President, [the beneficiary] strictly functions at an executive capacity. He has been in
charge of the overall administration of the Company's daily activities. He has the absolute
discretionary authority in the day-to-day operations including the authority to hire and fire
employees. He hires and confers with accountants and lawyers to review financial statements
and to resolve legal issues that affect the company. He executes and makes all the financial
decisions. He secures credit on behalf of the corporation and negotiates all transactions with
lending institutions. He plans business objectives and marketing strategies, develops
organizational policies and establishes responsibilities and procedures for attaining
objectives. He reviews analysis of activities, costs, operations and forecast data to determine
progress towards goals. He evaluates the performance of the company's employees for
compliance with the established policies and objectives of the company. He reports activities
to the parent company in Uruguay.
The petitioner identified three subordinate staff members in a separate document titled "Staffing Level
Employees USA." These staff members were identified as a manager, an import employee, and an export
employee. The manager is ascribed the following duties:
• Marketing & Sales [responsibilities].
• Supervise Import & Export Dept.
• Handles short term financial info.
• Human resources.
SRC 06 001 50448
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The import and export employees are described as processing orders and working with products.
On October 26, 2005, the director requested additional evidence. The director requested , inter alia, a list of
all of the beneficiary's duties, a breakdown of how much time the beneficiary devotes to each duty, a
description of all subordinate employees, and payroll records.
In response, the petitioner submitted a letter dated January 10, 2006, in which the petitioner further described
the beneficiary job duties. While much of this description is materially identical to the description appended
to the Form 1-129, the petitioner added the following duties to the supplemented description:
[The beneficiary] hires freight forwarders , transportation , warehouse services and custom
brokers as required for the import/export business. He meets with the Office Manager in
order to determine marketing , sales and advertising strategies[,] to discuss sales reports ,
inventories and purchasing expenses , and to review distributor network's operations. He
performs the required studies in order to identify business opportunities. He maintains
relations with customers and distributors.
* * *
Approximately a 10% (ten percent) of his time is spent on planning; 20% (twenty percent) on
financial, statistics, marketing and commercial analysis; 25% (twenty five percent)
coordinating commercial activities; 25% (twenty five percent) on public relations with
customers and distributors; 10% (ten percent) supervising personnel and sub-contractors; 5%
(five percent) studying business opportunities and 5% (five percent) preparing reports to the
Board of Directors and parent company.
The petitioner also further described the "office manager" in the January 10, 2006 letter as follows:
Meets with assistants in order to determine the purchases required. Places purchasing orders.
She meets with [the beneficiary] to determine the company's marketing, sales, and advertising
strategy. Keeps control of customs procedures and requirements for imports and exports.
Keeps control of sales, supervises inventories and prepares the required information to
process accounts payable and receivable. Keeps control of deliveries. She supervises the
Import Office Assistant and Export Office Assistant , and has the authority to hire and fire
personnel.
On April 13, 2006, 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, the petitioner asserts that the beneficiary's duties are primarily those of an executive.
Upon review, the petitioner's assertions are not persuasive.
SRC 06 001 50448
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Title 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 Citizenship and
Immigration Services (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 United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
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 "plans business objectives and marketing
strategies, develops organizational policies, and establishes responsibilities and procedures for attaining
objectives." The petitioner also states that the beneficiary performs "the required studies in order to identify
business opportunities." Finally, the petitioner asserts that the beneficiary devotes 20% of his time to
"planning," 25% of his time to "coordinating commercial activities," and 25% of his time on "public relations
with customers and distributors." However, the petitioner never defines what business objectives and
marketing strategies are being planned and attained; what policies and procedures are being developed; what
business opportunities are being studied or how the beneficiary performs this duty; what, exactly, the
beneficiary does to "plan" or "coordinate" commercial activities; or what he does while engaging in "public
relations with customers and distributors." The fact that the petitioner has given the beneficiary a managerial
or executive title and has prepared a vague job description which includes lofty duties does not establish that
the beneficiary will actually perform managerial or executive 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 of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
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 job descriptions for the beneficiary and the subordinate employees, the beneficiary
appears to supervise a staff of three employees who are engaged in operating the petitioner's business, i.e., an
import/export business. While the petitioner has given the subordinate employees lofty titles and has
described the "office manager" as having supervisory or managerial functions, the petitioner has not
established that this employee is primarily engaged in performing supervisory or managerial duties. To the
contrary, the office manager appears to be engaged in performing tasks related to providing a service or
producing a product, i.e., marketing, processing accounts receivable and accounts payable, and placing orders.
Inflated job titles and artificial tiers of subordinate employees are not probative and will not establish that an
SRC 06 001 50448
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organization is sufficiently complex to support a managerial or executive capacity position. In view of the
above, 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. 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 of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial employee must have authority over day­
to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees
are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N
Dec. at 604. Moreover, as the subordinate employees do not appear to have the requisite educational
background or skill level, the petitioner has not established that the beneficiary will manage professional
employees.' Therefore, the petitioner has not established that the beneficiary will be employed primarily in a
managerial capacity.'
lIn evaluating whether the beneficiary manages professional employees, the AAO must also 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(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
2While the petitioner has not specifically argued that the beneficiary manages 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(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. 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 manager of non-professional employees. Absent a clear and credible
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what
proportion of his duties would be managerial, nor can it deduce whether the beneficiary will primarily be
performing the duties of a function manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,
24 (D.D.C. 1999).
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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 , the beneficiary appears to be primarily employed as a first-line supervisor. Therefore , the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
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 been "doing business" for the
previous year as required by 8 C .F.R. § 214.2(l)(l4)(ii)(B). "Doing business" is defined in pertinent part as
the "regular, systematic, and continuous provision of goods and/or services." 8 C.F.R. § 214.2(l)(l)(ii)(H). In
this matter , the record does not establish that the petitioner has been engaged in the regular, systematic, and
continuous provision of goods and/or services for the one-year period subsequent to the approval of the
original new office petition. The record indicates that the original new office petition was approved on
October 1, 2004. According to the Form 1-129, the beneficiary arrived in the United States on or about
December 14, 2004, and the first invoice representing business activity by the petitioner is dated January
2005. Therefore , the record is not persuasive in establ ishing that the petitioner had been doing business for
the previous year. To the contrary , it appears that the petitioner has been doing business for no more than
nine months. Accordingly, the petition may not be approved for this additional reason.
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004) . Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act , 8 U.S.C. § 1361.
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), aff'd, 345 F.3d 683
(9th Cir. 2003) ; see also Dar v. INS, 891 F.2d 997 , 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
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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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.