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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 05 098 50162 Office: TEXAS SERVICE CENTER Date: FEB 0 2 z007
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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Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 098 50162
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.
On February 18, 2005, the petitioner filed this nonimmigrant visa petition seeking to extend the employment
of its general manager as an L-IA 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 limited liability
company organized under the laws of the State of Florida and is allegedly en d i rfng seafood and
exporting engine parts. The petitioner claims a qualifying relationship with of Venezuela.
The beneficiary was initially granted a one-year period of stay to open a new office in the United States. This
initial one-year period expired on October 2, 2004. The petitioner now seeks to continue the beneficiary's
previously approved employment for a period of two years.
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 in
denying the petition because the record establishes that the beneficiary is employed in an executive capacity.
The petitioner submits a brief in support of its appeal.
To establish eligibility for the L-l 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
SRC 05 098 50162
Page 3
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 regulation at 8 C.F.R. § 214.2(1)(14)(ii) also 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)(I)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(I)(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.
As a threshold issue, the current extension petition must be denied because it was filed after the expiration of
the initial one-year approval period for the new office. As indicated above, the initial one-year period expired
on October 2, 2004. The current petition was filed on February 18, 2005 and clearly indicates that it is
seeking the "continuation of previously approved employment without change." However, 8 C.F.R.
§214.2(l)(l4)(i) states that "[a] petition extension may be filed only if the validity of the original petition has
not expired." Since the validity of the original petition has expired, the petitioner in this matter may not file a
petition seeking to extend or continue the previously approved employment. For this reason, the petition may
not be approved.
Despite this defect in the petition, the AAO will address the substantive issues raised by the petitioner in the
appeal. The primary issue in this matter is whether the beneficiary will be employed by the United States
entity in a primarily executive capacity. 1
'While the initial petition is unclear regarding whether the petitioner is seeking to classify the beneficiary as a
manager or an executive, counsel to the petitioner clearly states in his appellate brief that the petitioner is
seeking to classify the beneficiary as an executive. Therefore, the AAO will restrict its analysis to whether
the petitioner has established that the beneficiary will be employed primarily in an executive capacity.
SRC 05 098 50162
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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 described the beneficiary's job duties in the Form 1-129 as follows: "Operate all sales and
distribution activities, including penetration of new markets, shipping, personnel, marketing, etc. Also
negotiate with U.S. suppliers for mechanical products for export."
The petitioner also described the beneficiary's job duties in a letter dated February 16, 2005, appended to the
initial Form 1-129, as follows:
In this capacity [as general manager], [the beneficiary] is: 1) Responsible for the day-to­
day operations of the company, including hiring staff, organizing shipment schedules,
inventorying and ordering products, and controlling money received. He: 2) Creates and
implements sales goals for the company; 3) Negotiates with supermarket chains,
wholesalers, and vendors to open new markets for the company; 4) Supervises the arrival
and distribution of each item; 5) Coordinates company policies according to government
regulations; and 6) Oversees the development of a sales department to increase sales
options.
As General Manager, [the beneficiary] fulfills all company operational requirements. He
is be [sic] responsible for all hiring and firing of personnel, organizing and posting work
schedules, etc. He is responsible for compliance with all governmental regulations and
proper record keeping.
On March 4, 2005, the director requested additional evidence seeking, inter alia, evidence regarding the
petitioner's employees and the beneficiary's purported executive duties.
In response, counsel provided a letter dated April 13, 2005 in which he provided an uncorroborated
description of the beneficiary's job duties and a breakdown of how much time the beneficiary devotes to each
duty. These duties include self-described "executive" duties such as being responsible for day-to-day
operations and developing relationships with banks, suppliers, and customers (40%); "business-related" duties
such as negotiating contracts, pricing, and setting policies and procedures (40%); and "Venezuelan business
SRC 05 098 50162
Page 5
trips" (20%) which appear to involve primarily the operations of the foreign entity.
Finally, counsel explained that the petitioner had no employees in 2004 other than the beneficiary, although
the petitioner did employ one additional person on a contract basis as a sales coordinator. This contractor was
paid approximately $5,737.41 in 2004 for his services and was made an employee of the petitioner in 2005.
Counsel described the sales coordinator's duties as being "entirely responsible for all of the company's sales
and marketing operations." Again, counsel did not corroborate his assertions with any documentary evidence.
On April 29 2005, the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, the petitioner asserts that the director erred in denying the petition. Specifically, counsel to the
petitioner asserts that the beneficiary is primarily employed as an executive and that the day-to-day duties of
the company are carried out by the sales coordinator.
Upon review, counsel's and the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 2l4.2(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 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 as defined by
law.
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.
In this matter, the petitioner has failed to prove 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.
SRC 05 098 50162
Page 6
As a threshold matter, the petitioner in this matter has failed to provide any credible breakdown of the
beneficiary's proposed duties. While counsel in his April 13, 2005 letter provided his own description of the
beneficiary's duties along with a breakdown of how much time is spent on each duty, the assertions of counsel
will not satisfy the petitioner's burden of proof without documentary evidence to support his claims. The
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534
(BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,
506 (BIA 1980).
Regardless, both the petitioner's description and counsel's description and breakdown of the beneficiary's
duties are insufficient to establish that he will be employed primarily in an executive capacity. As explained
in the vague job descriptions, the beneficiary's role appears to include many administrative and operational
duties necessary to the management of the business. For example, not only does counsel admit in his letter of
April 13, 2005 that only 40% of the beneficiary's time will be devoted to "executive" duties, but these self­
described "executive" duties include either non-qualifying tasks such as "prepare marketing meetings with
potential customers" or are so vague, i.e., conduct financial operations, that it is impossible to ascertain what,
exactly, the beneficiary will be doing. 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). Based on the job description provided, the petitioner has not established that the
beneficiary will be primarily employed in an executive capacity. 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).
Moreover, the petitioner's assertion that the sales coordinator will perform enough of the non-qualifying, day­
to-day tasks so as to permit the beneficiary to focus on executive duties is simply not credible when
considering the reasonable needs of the organization as described by the petitioner. The petitioner has
described its business as a seafood importer and engine parts exporter and has described the sales coordinator
as being "entirely responsible for all of the company's sales and marketing operations." However, implicit in
the petitioner's business, and in the beneficiary's job duties, are a variety of operational and administrative
tasks which are not related to sales or marketing, e.g., bookkeeping, check writing, and tracking receivables.
The petitioner does not employ anyone to relieve the beneficiary of performing all these other non-qualifying
or administrative duties. Therefore, the evidence fails to establish that the beneficiary will be employed
primarily in an executive capacity. It is appropriate for Citizenship and Immigration Services (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, the petitioner has not established that the beneficiary will be employed in a primarily executive
SRC 05 098 50162
Page 7
capacity as required by 8 C.F.R. § 214.2(1)(3).2
Beyond the decision of the director, a related issue is whether the petitioner has established that it has a
qualifying relationship with the foreign entity.
The regulation at 8 C.F.R. § 214.2(1)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
(A) Evidence that the United States and the foreign entity are still qualifying
organizations as defined in paragraph (l)(l)(ii)(G) of this section[.]
8 C.F.R. § 2l4.2(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 (l)(l )(ii) of this section." A "subsidiary" is defined, in part, as a legal entity,
including a limited liability company, which "a parent owns, directly or indirectly, more than half of the entity
and controls the entity." An "affiliate" is defined, in part, as "a legal entity owned and controlled by the same
group of individuals, each owning and controlling approximately the same share or proportion of each entity."
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 1&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 1&N Dec. 362 (B1A 1986); Matter ofHughes, 18 1&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 1&N Dec. at 595.
•
e initial Form 1-129 petition, the petitioner asserts that it is 1000/0 owned by the foreign entity,_
. of Venezuela. In support of this assertion, the petitioner provided a copy of its articles of organization,
its operating agreement, and a membership certificate indicating that the foreign entity owns 100% of the
petitioner. However, in response to the director's request for evidence, the petitioner provides evidence which
directly contradicts its assertion that it is 1000/0 owned by the foreign entity.
As indicated in the letter from the petitioner's accountant dated April 4, 2005, "[t]he company is a single
member limited liability company and as such must report all income and expenses on Schedule C of the
member's personal tax return." According to the petition, this single member is However, the
2It is noted that the director implies in her decision that, in order to establish that a beneficiary is employed
primarily as an executive, a petitioner must establish that a beneficiary manages "other professionals or
managers." The AAO hereby withdraws these comments. However, as explained above, because the
petitioner failed to establish that the beneficiary will be employed primarily as an executive for those reasons
set forth, the appeal is nevertheless dismissed.
SRC 05 098 50162
Page 8
petitioner provided a copy of the beneficiary's IRS 2004 Form 1040NR which includes the above mentioned
Schedule C. Therefore, the beneficiary, and not is being treated as the single member of the
limited liability company in direct contradiction of the petitioner's assertion in the petition. The petitioner
makes no attempt to explain this serious and fundamental inconsistency in the record. 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).
Moreover, since the record also reveals in the translated organizational materials submitted with the initial
petition that the beneficiary does not own a majority share of the foreign entity, it cannot be argued in the
alternative that the petitioner and the foreign entity are affiliates.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign
employer, and the petition may not be approved for this additional reason.
Moreover, according to Florida state corporate records, the petitioner's corporate status in Florida was
"administratively dissolved" on October 1, 2004. Therefore, since the corporation may not carry on any
business except that necessary to wind up and liquidate its affairs, and the petitioner has not taken steps under
Florida law to seek reinstatement, the company can no longer be considered a legal entity in the United States.
See Fla. Stat. 607.1421 (2006). Therefore, as this clearly and unequivocally renders the petitioner ineligible
for the classification sought, the petition could not be approved even if the other grounds for denial were
overcome on appeal.
The initial approval of an L-IA 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. v. Upchurch, 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 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. Here, that burden has not been met. Accordingly, the appeal will be
, .
SRC 05 098 50162
Page 9
dismissed.
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported and
contradictory assertions that are contained in the current record regarding the alleged qualifying relationship,
the approval would constitute material and gross error on the part of the director. Therefore, a review of the
prior L-1 nonimmigrant petition approved on behalf of the beneficiary is warranted to determine if it was
approved in error. The director shall review the prior L-1 nonimmigrant petition approved on behalf of the
beneficiary for possible revocation in accordance with 8 C.F.R. § 214.2(1)(9).
ORDER:
FURTHER ORDERED:
The appeal is dismissed.
The director shall review the prior L-1 nonimmigrant petitions approved on
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. §
214.2(1)(9). .