dismissed L-1A Case: Import/Export

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PUBLICCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: SRC 04203 53877 OFFICE: TEXAS SERVICE CENTER Date: JUN 05 2001
INRE: 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)
ON 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.
<"""--~..~ --
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 04 203 53877
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 vice 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)(15)(L). The petitioner is a corporation organized in the State of
Georgia and claims to be engaged in importing and exporting arts and crafts. The petitioner states that it is a
subsidiary of Guihai Enterprise Co., Ltd., located in China. The beneficiary was initially granted a one-year
period of stay to open a new office in the United States. The petitioner seeks to continue its employment of
the beneficiary as an L-1A nonimmigrant. The director determined that the petitioner failed to establish that
the beneficiary would be employed in the United States in a managerial or executive capacity and denied the
petition.
On appeal, counsel disputes the director's conclusion, asserting that the petitioner failed to provide an
adequate basis for denying the petition. Counsel submits a brief in support of his assertions.
To establish L-1 eligibility under section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act),
8 U.S.c. § 1l01(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge.
The regulations at 8 C.F.R. § 214.2(1)(3) state 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)(1)(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.
SRC 04 203 53877
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In addition , 8 C.F .R. § 214.2(l)(l4)(ii) , a visa petition under section 101(a)(15)(L) which involved the
opening of a new office may be extended by filing a new Form 1-129 , accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(i i)(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) E vidence of the financial status of the United States operation.
The primary issue in this proceeding is whether the petitioner has established that it would employ the
beneficiary in a managerial or executive capacity.
Section 101(a)(44)(A) of the Act , 8 U.S.c. § 1101(a)(44)(A) , provides:
The term "managerial capacity" means an assignment within an organization in which the
employee primarily-
1. manages the organization, or a department, subdivision, function, or component
of the organization;
11. 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;
111. 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. exerc ises discretion over the day-to-day operations of the acti vity or function for
which the employee has authority. A first -line supervi sor is not considered to
be acting in a managerial capacity merely by v irtue 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), provides:
SRC 04 203 53877
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The term "executive capacity" means an assignment within an organization in which the
employee primarily-
1. directs the management of the organization or a major component or function of
the organization;
11. establishes the goals and policies of the organization, component, or function;
111. 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.
In the supplement to Form 1-129, Section 1, the petitioner stated that the beneficiary would "[c]ontinue to
manage and direct trade operations, negotiate and execute contracts, develop marketing strategies, hire and
fire, and exercise discretionary authority." The petitioner did not provide any additional information
regarding the beneficiary's specific daily activities.
On July 30, 2004, Citizenship and Immigration Services (CIS) issued a request for additional evidence (RFE)
instructing the petitioner to provide, in part, the following documentation: 1) the petitioner's 2004 quarterly,
tax returns; 2) the petitioner's organizational chart illustrating its staffing levels and providing each employees
name and position title as well as his/her educational background; and 3) a list of the beneficiary's proposed
duties as well as the percentage of time attributed to each duty.
The petitioner's response included a complete wage report for the third quarter of 2004, which includes the
time period during which the petition was filed. The petitioner also provided its organizational chart, which
names a total of seven employees and three positions that have not been filled. The petitioner also provided
the following breakdown of duties and responsibilities assigned to the beneficiary:
2% Looking for and lease [sic] new office and warehouse.
2% Hire new employees.
4% Office renovation.
2% Set up financial accounts.
2% Establish the [petitioner].
4% Laison [sic] with broker for import and export requirement.
9% Study the U.S.A. market, know the right merchandise and plan the future purchase[s].
10% Sales development, contact customers and shows [sic] agent.
30% Office and warehouse management.
SRC 04 203 53877
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30% Supervise personnel.
5% Seeking other investment opportunity for [sic] mother company.
On August 23, 2004, the director denied the petition concluding that the petitioner failed to establish that the
beneficiary's prospective employment would be in a qualifying managerial or executive capacity. While the
AAO concurs with the director's findings and ultimate conclusion regarding the petitioner's ineligibility, the
basis for her decision lacks a discussion of information that is essential to this determination. More
specifically, a determination of the executive or managerial capacity of the beneficiary requires full
consideration of the petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. §
214.2(l)(3)(ii). The director's analysis focuses on information discovered in a review of the petitioner's
organizational chart and quarterly wage report. That being said, the relevance of these documents is
undisputed. The organizational chart illustrates the petitioner's claimed staffing composition, while the latter
document determines which of those employees was actually a paid staff member around the time the Form 1­
129 was filed. Together, the two documents assist CIS in determining whether the petitioner was adequately
staffed to relieve the beneficiary from having to primarily perform duties of a non-qualifying nature.
In the present matter, the employee earnings shown in the petitioner's third quarterly wage report during
which the Form 1-129 was filed indicate that the petitioner's secretary and controller were employed on a
limited part-time basis. Despite this fact, the petitioner does not explain who performs the duties of the
controller and secretary during the remainder of the time. The unfilled positions of a manager and two sales
agents cannot be considered in determining the petitioner's eligibility, as 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. Matter of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, a determination of eligibility in the present matter
will be based on the five full-time and two part-time workers whose employment has been documented in the
petitioner's wage report. While the multi-tiered structure illustrated in the petitioner's organizational chart is
meant to suggest a separation between the beneficiary's position at the top of the hierarchy and the lower level
employees, the petitioner has provided no information to explain who performs which duties and how such
efforts relieve the beneficiary from having to primarily perform non-qualifying tasks.
Regardless, in the present matter, the petitioner's staffing composition alone is not determinative of the
petitioner's claimed eligibility. This factor must instead be considered in light of the duties and
responsibilities that comprise the beneficiary's proposed employment. The percentage breakdown provided in
response to the RFE indicates that 2% of the beneficiary's time would be spent looking for new office and
warehouse space, 4% would be spent on office renovation, another 4% would be spent contacting shipping
brokers, 9% would be spent doing market research, and 10% would be spent contacting customers and other
sales-related duties. These duties are non-qualifying as they can all be classified as operational tasks
necessary to provide the petitioner's service. Thus, 29% of the beneficiary's time would be spent performing
non-qualifying tasks. While the performance of these non-qualifying tasks would not automatically render
the petitioner ineligible, since they comprise less than half of the beneficiary's time, the petitioner fails to
specifically identify the tasks that would comprise the remainder of the beneficiary's time. More specifically,
the petitioner stated that 30% of the beneficiary's time would be spent managing the office and the warehouse
while another 30% would be spent supervising personnel. These broad responsibilities fail to specify the
means by which the beneficiary manages the office, the warehouse, and the petitioner's staff. Specifics are
SRC 04 203 53877
Page 6
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), affd, 905 F.2d 41 (2d. Cir. 1990). The actual duties
themselves reveal the true nature of the employment. !d.
Furthermore, the petitioner's organizational chart does not indicate that the petitioner has a warehouse
department equipped with warehouse personnel. This brings into question the nature of duties performed by
the beneficiary in his effort to manage the warehouse. Without a staff to assist with the warehouse duties, it
must be concluded that the beneficiary's warehousing responsibilities would require his performance of non­
qualifying tasks. 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).
Additionally, the claim that 30% of the beneficiary's time would be spent supervising personnel further brings
into question the nature of the job duties to be performed in light of information conveyed by the
organizational chart, which shows three positions directly subordinate to the beneficiary. However, of the
beneficiary's three subordinates, two are employed on a limited part-time basis while the third position was
entirely unfilled at the time the Form 1-140 was filed. Accordingly, it stands to reason that the beneficiary
would directly supervise an accountant, the secretary's assistant, and the company's sole sales representative.
Therefore, it appears that two out of three of the beneficiary's subordinates are non-managerial, non­
supervisory, and non-professional, which indicates that the beneficiary's supervisory duties are at the level of
a first-line supervisor rather than a manager or executive. See section 101(a)(44)(A)(ii) of the Act.
On appeal, counsel questions the director's focus on employee wages and the insufficient analysis of the basis
for denial. While the AAO agrees with counsel's assertion that certain aspects of the director's decision were
deficient, the need for a detailed job description was clearly conveyed in the RFE. As discussed above, the
petitioner failed to account for at least 60% of the beneficiary's time by providing general responsibilities
instead of specifying the actual job duties. The fact that this issue was not specifically discussed by the
director does not change the petitioner's ineligibility, particularly in light of the prior notice provided by
means of the RFE, which specified the need for the required information.
Further, counsel seemingly suggests that the petitioner is relieved of the burden of having to address on
appeal any issue that was not previously brought up in the RFE. Counsel's assertion is incorrect. Even if the
director had committed a procedural error by failing to solicit further evidence with regard to a certain issue,
it is not clear what remedy would be appropriate beyond the appeal process itself. In the present matter, the
director questions the petitioner's ability to support two executive positions, which is a valid concern given
the staffing composition of the petitioning entity. As previously discussed, the beneficiary's direct
subordinates are employed on a part-time basis. The petitioner has not established that the individuals the
beneficiary would supervise can be deemed managerial, supervisory, or professional employees. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure Craft
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, as previously stated, the record lacks a
detailed job description that reveals the specific duties the beneficiary would primarily perform during most
of his workday. Thus, the director's doubt as to the petitioner's ability to sustain two executive positions
SRC 04 203 53877
Page 7
whose duties are primarily of an executive nature is valid. While the petitioner had the opportunity to address
this issue on appeal by providing further explanations detailing the job duties of its staff and explaining how
the organization would function on a daily ba sis without the beneficiary being called upon to primarily
perform the operational tasks, counsel opted to avoid the director's observation altogether.
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been
or will be employed in a primarily managerial or executive capacity. Despite the shortcomings of the
director's analysis, the need for a detailed description of duties was adequately conveyed. The director also
provided sufficient indication to convey his doubts regarding the adequacy of the petitioner's staffing structure
and its ability to support the beneficiary in a primarily managerial or executive position. These issues have
not been sufficiently addressed on appeal. The record indicates that a preponderance of the beneficiary's
duties have been and will be directly providing the services of the business. The petitioner has not
demonstrated that it has reached a level of organizational complexity wherein the beneficiary can attribute the
primary portion of his time to qualifying managerial or executive duties. For this reason , the petition may not
be approved .
Furthermore , the record suggests that the petitioner failed to establish eligibility on additional grounds that
were not pre viously addressed in the director's decision.
First, 8 C.F.R. § 214.2(l)(14)(ii)(A) requires that the petitioner establish that it continues to have a qualifying
relationship with the beneficiary's foreign employer . In the present matter, the petitioner claims to be a
subsidiary of the beneficiary's foreign employer. In support of this claim , the petitioner provided stock
certificate no. 5 indicating that it issued 80 ,000 shares of a total 100 ,000 authorized shares. However, the
petitioner did not provide certificate nos. 1-4 or its stock ledger documenting any prior issuances of shares;
nor has the petit ioner provided its Articles of Incorporation revealing the number of authorized shares aside
what has been indicated in stock certificate no. 5 .
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
Matter of Siemens 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 petit ion, 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 establ ishment, management , and operations of an entity . Matter
of Church Scientology Int ernational , 19 I&N Dec . at 595 . 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. Thus, in the present matter, the petitioner has failed to
provide sufficient evidence documenting its claimed qualifying relationship with the foreign entity.
Second , 8 C.F.R . § 214.2(l)(l4)(ii)(B) requires that the petitioner establish that it has been doing business as
defined in paragraph (l)(l )(ii)(H) of this section for the previous year. In the present matter , the petitioner's
evidence of doing business consists of one sales order dated December 4,2003, two shipping invoices dated
November 3, 2003 and June 4, 2004, respectively , and a dealer receipt dated December 2003 showing the
beneficiary as the dealer. These documents do not establish that the beneficiary was doing business from July
2003 to July 2004, the one-year period prior to the time the Form 1-129 was filed .
SRC 04 203 53877
Page 8
Third, 8 C.F.R. § 214.2(l)(14)(ii)(C) requires that the petitioner submit a statement of the duties performed by
the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition.
In the present matter, while the petitioner provided a statement signed by Chairman Peng Jian Xion
discussing the beneficiary's duties abroad, a similar statement discussing the beneficiary's duties for the past
year was not provided.
It is noted that 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). As such, due to the additional grounds discussed above, this
petition cannot be approved.
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. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.