dismissed L-1A Case: Import/Export Marketing

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u.s.Department of Homeland Security
20 Massachusetts A ve., N.W., Rm. A3000
Washington , DC 20529
u.S.Citizenship
and Immigration
Services
File: SRC 05 229 52902 Office: TEXAS SERVICE CENTER Date: AVO 03 mJ1
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:
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.
~-~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 229 52902
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 dismissed.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its "marketing
executive" 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 Florida corporation
and is allegedly engaged in the business of import/export marketing. 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 beneficiary will be
employed in an executive capacity. In support of the appeal, the petitioner submits additional evidence
regarding the petitioner's business activities and the beneficiary's job duties and accomplishments.
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)(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; however, the work in the United States need not be the
same work which the alien performed abroad.
SRC 05 229 52902
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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. § 1101(a)(44)(B), defines the term "executive capacity" as an
SRC 05 229 52902
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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 the petitioner repeatedly refers to the beneficiary as an "executive" in
both the initial petition and in the subsequently filed appeal, the petitioner does not clearly state that it is
seeking to classify the beneficiary as being employed primarily in an executive capacity. Given the
ambiguity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed as either
an executive or a manager and will consider both classifications.
The petitioner described the beneficiary's job duties in the Form 1-129 as follows: "Develops new marketss
[sic]; establish new lines of product exportable to [Mexico]. Office management , [c]reate new sales strategy."
The petitioner also provided copies of 2004 Forms 1099-MISC for four individuals, including the beneficiary,
apparently employed by the petitioner in 2004 as independent contractors.
On August 30 , 2005, the director requested additional evidence. The director requested , inter alia, an
organizational chart for the United States operation and job descriptions for the petitioner's staff.
In response, the petitioner provided an organizational chart showing the beneficiary at the top of the
organization supervising two administrative assistants and an import/export sales assistant. These staff
members are described in the chart as being engaged primarily in performing clerical, administrative, and/or
operational tasks. The petitioner also further described the beneficiary's job duties in an undated letter as
follows:
[The beneficiary's] position as an executive at our Florida office included several duties
during the past year, such as , representing our firm as our chief officer in regards to our
customer relations . He has opened new markets and has signed several agreements with
other U.S. established companies throughout the year. He is also responsible for the planning
of marketing strategies, and supervision of our staff in Florida, as well as, identifying
business opportunities in the U.S. and [i]ntemational markets.
On October 31, 2005, 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.
SRC 05 229 52902
Page 5
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive. In support of
the appeal, the petitioner submits additional evidence regarding the petitioner's business activities and the
beneficiary's job duties and accomplishments.
Upon review, the petitioner's assertions are not persuasive.
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 develops "new markets" and is involved in
"customer relations." However, the petitioner does not specifically explain what, exactly, the beneficiary will
do in his performance of these duties. The fact that the petitioner has given the beneficiary a 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 of
California, 14 I&N Dec. 190 (Reg. Comm. 1972).1
'u is noted that, on appeal, the petitioner provided additional documentation concerning the petitioner's
business activities and the beneficiary's job duties and accomplishments. The petitioner also provided an
expanded organizational chart. However, the petitioner was put on notice of required evidence in the Request
for Evidence and given a reasonable opportunity to provide it for the record before the visa petition was
adjudicated. The petitioner failed to submit the requested evidence and now submits it on appeal. The AAO
will not consider this evidence for any purpose. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of
proceeding before the director.
SRC 05 229 52902
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Moreover, as the petitioner's description of the beneficiary's duties indicates that the beneficiary will primarily
be engaged in sales, marketing, customer relations, and general office management, it has not been
established that the beneficiary will primarily perform executive or managerial duties. Sales, marketing, and
customer relations tasks do not rise to the level of being managerial or executive duties when the tasks
inherent to these duties are performed by the beneficiary. In this case, the petitioner does not appear to
employ a sales staff dedicated to relieving the beneficiary of the need to perform non-qualifying tasks related
to marketing, sales, and customer relations. As described by the petitioner, the subordinate staff members are
employed as clerical, operational, or administrative staff members engaged in shipping goods, completing
paperwork, and answering the telephone. Tasks related to sales, marketing, and customer relations, according
to the petitioner's description of the beneficiary's duties, are apparently being performed by the beneficiary
himself. 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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees. As explained in the organizational chart and job
descriptions for the subordinate staff members, the beneficiary appears to manage a staff of three independent
contractors who are engaged in performing the tasks related to providing a service or producing a product.
The petitioner has not established that these staff members are primarily engaged in performing supervisory
or managerial duties. In view of the above, the beneficiary would appear to be primarily a first-line
supervisor of non-professional staff members, the provider of actual services, or a combination of both. 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 skill and educational
levels of the subordinate staff members have not been disclosed, the petitioner has not established that the
beneficiary will manage professional employees.' Finally, as these staff members are not employees, but
appear to be independent contractors, the beneficiary's supervision of them cannot be a qualifying managerial
duty as a matter of law. Section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2). Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.'
2In evaluating whether the beneficiary manages professional employees, the AAO must 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).
3While the petitioner has not specifically argued that the beneficiary will manage 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
SRC 05 229 52902
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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, as explained above, the beneficiary appears to be employed as a first-line supervisor of
clerical and operational employees and to be performing non-qualifying sales, marketing, and customer
relations tasks. Therefore, the petitioner has not established that the beneficiary will be employed primarily in
an executive capacity.
It is appropriate for 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, 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.
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 supervisor of non-professional staff members and will perform the
tasks necessary to produce a product or provide a service. 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).
SRC 05 229 52902
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Beyond the decision of the director, a related matter is whether the petitioner has established that it still has a
qualifying relationship with the foreign employer.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(1)(ii)(G) of this section[.]
8 C.F.R. § 214.2(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 corporation
"of which a parent owns, directly or indirectly, half of the entity and controls the 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 I&N Dec. 593; 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 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.
In this matter, the petition is so rife with inconsistencies regarding the ownership of the petitioner that it
cannot be confirmed who exactly owns and controls the United States operation. In the petitioner's letter
dated August 15, 2005 appended to the initial petition, the petitioner purports that it is 100% owned by the
foreign entity. However, in the Form 1-129 and the Articles of Amendment to the Articles of Incorporation
the petitioner avers that the foreign entity owns 50% of the petitioner and the beneficiary owns 50% of the
petitioner. In the petitioner's 2004 Form 1120, the petitioner averred that no individual or corporation owned
500/0 of more of the petitioner's stock and that no foreign person owned at least 25% of the petitioner's stock.
These averments in the Form 1120 are inconsistent with both the petitioner's description of its ownership
contained in the August 15, 2005 letter and its description in the Form 1-129. Finally, in the petitioner's
business PI_nthe etitioner alleges that it is owned by the beneficiary, the foreign entity, and a third
individual, The petitioner fails to explain any of these serious inconsistencies in the record
regarding its owners rp ana control. 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 of
Ho, 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. Id. at 591.
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.
SRC 05 229 52902
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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., 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
dismissed.
ORDER: The appeal is dismissed.