dismissed L-1A Case: Import/Export

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u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
SRC 0524851500 Office: TEXAS SERVICE CENTER
Petitioner:
Beneficia
Date: FEB () 1 Z007
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:
SELF-REPRESENTED
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.
Si ~I >~;;
/ //'';!(-t(il. / I. ~tt--
/ t·G/'
'--"j..RobertP. WIemann, Chief
/ Administrative Appeals Office
www.uscis.gov
SRC 05 248 51500
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 appeal will be summarily
dismissed.
The petitioner, a Delaware corporation, claims to be a branch of Netsmart E-Com India Limited, located
in the United Arab Emirates. The petitioner stated that the United States entity is engaged in the business
of import and export and trading. Accordingly, the United States entity petitioned U.S. Immigration and
Citizenship Services (USCIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L­
lA) pursuant to section 101(a)(l5)(L) of the Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The beneficiary
was initially granted a one-year period of stay, and the petitioner now seeks to extend the beneficiary's
stay in order to continue to fill the position of general manager.
The director denied the petition concluding that the record contains insufficient evidence to demonstrate
that the beneficiary will be employed in a managerial or executive capacity. The director noted that the
beneficiary is the only employee of the U.S. entity, and thus will perform all the non-qualifying duties for
the business.
The petitioner subsequently filed an appeal on December 9, 2005 and asserts on Form I-290B: "We feel
the decision taken on our petition is not correct and would like to appeal to reverse the decision by giving
more evidence." The petitioner indicates on Form I-290B that it would submit a brief and/or evidence to
the AAO within 60 days. As no additional evidence has been incorporated into the record, the AAO
contacted the petitioner by facsimile on January 17, 2007 to request that the petitioner acknowledge
whether the brief and/or evidence were subsequently submitted, and, if applicable, to afford the petitioner
an opportunity to re-submit the documents. The petitioner did not respond to the AAO. Accordingly, the
record will be considered complete.
To establish eligibility under section 10l(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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.
Regulations at 8 C.F.R. § 103.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. The
petitioner's general objections to the denial of the petition, without specifically identifying any errors on
the part of the director or providing new evidence to support that the beneficiary will be employed in a
primarily managerial or executive capacity, are simply insufficient to overcome the well-founded and
logical conclusions the director reached based on the evidence submitted by the petitioner. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of
SRC 05 248 51500
Page 3
proof in these proceedings. Matter of Soffici, 22 I & N Dec. 158, 165 (Comm. 1998)(citing Matter of
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
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). On review, while the beneficiary
evidently exercises discretion over the day-to-day operations of the business, the petitioner's description
of his proposed duties suggests that the beneficiary's actual duties include a number of non-managerial
and non-executive duties.
The beneficiary's proposed job description includes vague duties such as the beneficiary is responsible for
all "operational and management functions of the company in the United States"; "formulate policies, hire
and fire employees, set goals and direct day-to-day operation of the company"; and has "absolute
authority for the operations and management of the company." The petitioner does not explain what
exactly are the goals and policies of the petitioner. 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 provide any detail or explanation of the
beneficiary's activities in the course of her daily routine. The actual duties themselves will reveal the true
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 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. Id.
In addition, the job duties required of the beneficiary include non-qualifying duties such as the beneficiary
is responsible for "researching the international market in order to develop marketing and sale strategies
on a long and short-term basis"; "negotiating contracts and consulting follow-up with client"; and
"determine customer's requirements as per feedback from marketing/sales representatives." As the only
employee of the U.S. company, it appears that the beneficiary will be providing the services of the business
rather then directing such activities through subordinate employees. An employee who "primarily" performs
the tasks necessary to produce a product or provide a service 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 1& N Dec. 593, 604 (Comm. 1988).
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather
the AAO must determine based on the totality of the record whether the description of the beneficiary's
duties represents a credible account of the beneficiary's role within the organizational hierarchy. As noted
by the director, the record does not demonstrate that the petitioner has any employees to perform the
routine non-executive and non-managerial functions of the business.
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. The petitioner has not
demonstrated that the U.S. company has hired additional employees who would relieve the beneficiary
from performing primarily non-qualifying duties associated with operating a business. In response to the
director's request for evidence, the petitioner stated that the U.S. company hired an administrative
manager "after the filing of Form 941 Employer Quarterly Report and before filing the extension
SRC 05 248 51500
Page 4
petitioner. Therefore the Form 941 reflects one employee and 1-129 petition reflects two employees."
The petitioner did not submit any documentation to establish that this individual was actually hired by the
company. The petitioner did not submit pay stubs, or the company's subsequent Employer's Quarterly
Reports to establish that the u.s. entity has hired the beneficiary and one additional employee. 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. at 165.
As the United States company has not hired any employees, it is reasonable to assume, and has not been
proven otherwise, that the beneficiary will be performing all sales, acquisition and marketing functions
and financial development, and all of the various operational tasks inherent in operating a company on a
daily basis, such as acquiring new business, negotiating contracts, paying bills, and performing marketing
functions. Again, an employee who "primarily" performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated
managerial or executive duties); see also Matter ofChurch Scientology Int 'I., 19 I&N Dec. at 604. Based
on the record of proceeding, the beneficiary's job duties are principally composed of non-qualifying duties
that preclude him from functioning in a primarily managerial or executive role.
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the 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
regulations that allows for an extension of this one-year period. If the petitioner does not have sufficient
staffing after one year to relieve the beneficiary from primarily performing non-qualifying operational
and administrative tasks, 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. For the foregoing reasons, the appeal will be dismissed.
Beyond the decision of the director, it does not appear that the U.S. company is doing business as
required by the regulations. 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 establish the new office.
Furthermore, at the time the petitioner seeks an extension of the new office petition, the regulations at 8
C.F.R. § 214.2(l)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business for the
previous year. The term "doing business" is defined in the regulations 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." 8 C.F.R.
§ 214.2(1)(1)(ii). There is no provision in CIS regulations 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.
The petitioner did not submit any documentation to demonstrate that the U.S. entity is currently doing
business such as financial statements, IRS federal tax returns, and/or copies of invoices. In addition, the
petitioner failed to demonstrate that the U.S. entity has any assets, inventory or salaried employees, other
than the beneficiary. Although the petitioner stated on Form 1-129 that the U.S. company achieved gross
annual income of $1.5 million, the record contains no evidence to corroborate this claim, nor any other
evidence of the company's financial status, as required by 8 C.F.R. § 214.2(l)(14)(ii)(E). Again, going on
SRC 05 248 51500
Page 5
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. at 165. Thus, the appeal will be dismissed.
Beyond the decision of the director, the petitioner failed to provide sufficient evidence to establish that a
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8
C.F.R. § 214.2(1). In the instant petition, the petitioner claims that the U.S. entity is a branch office of the
foreign company, and states that the foreign company owns 100% of its stock.
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 I&N Dec. 593 (BIA
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of
Hughes, 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 of Church Scientology International, 19 I&N Dec. at
595.
The petitioner submitted the articles of incorporation of the United States company. As general evidence
of a petitioner's claimed qualifying relationship, the articles of incorporation alone are not sufficient
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The
stock certificates, 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. For this additional reason, the appeal will be dismissed.
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).
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. Inasmuch as the petitioner has failed to identify
specifically an erroneous conclusion of law or a statement of fact in support of the appeal, the petitioner
has not sustained that burden. Therefore, the appeal will be summarily dismissed.
ORDER: The appeal is summarily dismissed.