dismissed L-1A Case: Imports And Tourism

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PUBLICcorv
U.S.Departm ent ofHomeJand Security
20 Mass. Ave., N.W., Rin. 3000
Washin gton, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: SRC 06 054 52095 Office : TEXAS SERVICE CENTER Date : MAR .O 7 ZOO, .
INRE: Petitioner:
Beneficiary:
PETITION : Petition for a Nonimmigrant Worker Pursuant to Section 10I (a)(15)(L) of the
Immigration and Nationality Act , 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER :
INSTRUCTIONS :
This is th e decision of the Administrative Appeals Office in your case '. All documents have been returned
to the office that originally decided your ca se. Any further inquiry must be made to that office .
. 7 ~/d--1Robert P. Wiemann , Chief
Administrati ve Appeals Office
www.uscis.gov
SRC 06 054 52095
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, a Florida limited liability company, claims that it is engaged in the imports and tourism
business. The petitioner states that itis a subsidiary of ~located in Turkey. Accordingly , the
United States ent ity petitioned Cit izenship and Immigration Services (CIS) to classify the beneficiary as a .
. nonimmigrant intracompany transferee (L~lA) pursuant to section 101(a)(15)(1) of the Immigration and
Nationality Act (the Act), 8 U .S.C. § 1101(a)(15)(L). The petitioner was initially granted a one-year
period of stay to open a new office . The petitioner now seeks to extend the beneficiary's stay in order to
continue to fill the posit ion of chief executive officer for a two year period.
The director denied the petition on April 20, 2006, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it did not appear that the beneficiary supervises a
staff of professional , managerial of supervisory personnel who will relieve the beneficiary from
performing non-qualifying duties, and thus the beneficiary will be primarily involved in performing the
day-to-day services essential to running a business .
On appeal, counsel for the petit ioner states that the "development of a new office in a different country
may take a bit longer than expected, and a company cannot hire employees without first establishing the
business premises ." Counsel requests that the CIS take into consideration certain delays in opening the
new office such as the fact that the beneficiary did not obtain his L-1 visa stamp from the U.S. Consulate
in Istanbul until February 24 , 2006, and the U.S. entity did not obtain a lease agreement for the new office
until September 2006, and after renovation and decoration of the new space , the store did not open until
November 2006, one month before filing the instantpetition,
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria . .
Specifically, w ithin 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 .
The regulation at 8 C.F.R. § 214.2(1)(3)further 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)(1)(ii)(G) of this
section.
(ii) E vidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity , including a detailed description of the services
to be performed .
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(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organi zation within the three years preceding the filing
ofthe 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 ..
The regulation at 8 C.F.R. § 214.2(l)(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)(l)(ii)(G) of this section ;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(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.
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary. .
will be employed in a primarily 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 a ssignment 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
employee s, or manages an essential function within the organization , or a department or
subdivision ofthe organization ;
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(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; arid
(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), provides:
The term "executive capacity " means an ass ignment 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 supervis ion or direction from higher level executives , the
board of directors, or stockholders of the organization.
The nonimmigrant petition was filed on December 8, 2005. The Form 1-129 indicates that the beneficiary
will be employed in the position of chief executive officer for the petitioner , which claimed to have two
employees. In a support letter dated November 27, 2005, the beneficiary's proposed duties in the U .S. are
described as the following:
1) Managing the company ; 2) supervising day-to-day activities; 3) h iring/firing personnel; 4)
establishing the goals and policies of the company ; and 5) managing company finances.
In addition, the petitioner stated in a support letter, dated December 5,2005 , "we have started activities a bit
later than originally planned because of several reasons: first, the delay in obtaining the L-l visa in Istanbul ,
and then the delay in signing the lease for the showroom due to the management company 's approval
process. " Counsel for the petitioner, in a letter dated December 5, 2005, noted that the company employs the
beneficiary and a market research director.
On January 14,2006 , the director determined that the petitioner did not submit sufficient evidence to process .
the petition and the director requested that the petitioner submit: (1) convincing evidence that the beneficiary
is employed in a managerial capacity; (2) a detailed bus iness plan for the U 'S. entity; (3) copies of the
company's state quarterly tax returns indicating payroll taxes paid to the state; (4) copies of the U.S.
company 's IRS Form 941, Employer's Quarterly Federal Tax Return , for all employees for the last four
quarters ; (5) cop ies of Forms 1098 and 1099 evidencing contract employees ; and, (6) an organizational
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chart for the U.S . company , including the names , job titles and a detailed job description for each
employee.
In a response to the director 's request , the p~titioner failed to provide evidence that the beneficiary will be
employed by the U.S ; entity in a managerial capacity as requested by the director . In addition, the petitioner
submitted an organizational chart of the U.S. entity but failed to provide a detailed job description of the
duties performed by each employee as requested by the director . Failure to submit requested evidence .that
precludes a material line of inquiry shall be grounds for denying the petition . 8 C.F.R. § 103.2(b)(14) . :
As noted above, the petitioner submitted an organizational chart for the United States company. The chart
indicated that the beneficiary holds the position of chief executive officer, who in tum supervises the retail
operations director and the market research director. The chart also indicated that the retail operations
director supervises sales associates, however, these individuals are not named. The chart stated that the retail
operations director is responsible for "managing retail locations and responsible for sales associates." In
addition, the chart stated that the market research director is responsible for "market research and analysis."
The petitioner also submitted the petitioner 's Form 9~l , Employer 's Quarterly Federal Tax Return , for all
four quarters of 2005 . The tax returns indicate that the U.S. company employed one individual , the
beneficiary. In addition , the petitioner submitted Form 1099 for 2005 for two individuals. One Form
1099 was issued to the individual listed as the retail operations director on the U.S. entity's organizational
chart , who received $2250.00 in compensation in 2005 , and the second individual is listed as the market
research director on the organizational chart, who rece ived $750.00 in compensation for 2005.
The director denied the petition on April 20 , 2006 onthe ground that insufficient evidence was submitted '
to demonstrate that the beneficiary will be employed in a primarily executive or managerial capacity by
the U.S. company. The director observed that there was no evidence of any full-time employees who
would relieve the beneficiary from performing primarily non-qualifying duties associated with the routine
operations of the business ..
The petitioner filed an appeal on May 19, 2006. On appeal, counsel for the petitioner states that the
"development of a new office in a different country may take a bit longer than expected , and a company
cannot hire employees without first establishing the business premises." Counsel requests that the CIS
take into consideration certain delays in opening the new office, including the delay the beneficiary
encountered at the U.S . Consulate in Istanbul in obtain ing avisa stamp , and the delay in obtaining a lease
agreement for the new office. Counsel explains that the new office did not open until November 2006,
one month before filing the instant petition.
Counsel's assertions are not persuasive. Upon review of the petition and evidence , the petitioner has not
established that the beneficiary will be employed in a managerial or executi ve capacity. _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. § 2l4.2(1)(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. ld..
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As noted above , in the request for evidence , the director requested that the petitioner submit additional
evidence to establish that the beneficiary would serve in a primarily managerial capacity including
evidence that the beneficiary would supervise managerial, supervisory or professional personnel, or an
essential function . In addition, the director requested a detailed job description for each employee of the
U.S. entity . The petitioner failed to submit th is documentation in its response . This evidence is critical ,
as it would have established if the beneficiary will perform primarily managerial or executive duties while
employed by the U.S. company . The purpose of the request for evidence is to elicit further information
that clarifies whether eligibility for the benefit sought has been established . 8 C.F.R. § 103.2(b)(8). The
failure to submit requested evidence,that precludes a material line of inquiry shall be grounds for deny ing
the petition . 8 C.F.R. § 103.2(b)(14). In the instant matter , the petit ioner did not submit a detailed job
description of the duties the beneficiary will perform at the U.S. entity and thus AAO cannot determine if
the beneficiary will be employed by the U .S. entity in a managerial or executive capacity. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Mader of Soffici, 22 I&N Dec . at 165 (Comm. 1998) (citing Maller of
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The definitions of executive and managerial capacity have two parts. First , the petitioner must show that
the beneficiary performs the h igh-level responsibilities that are specified in the definitions . Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
Based on the current record , the AAO is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's dut ies, or whether the beneficiary primarily performs non­
managerial administrative or operational duties . An employee who "primarily" performs the tasks
necessary to produce a product or provide a serviceis not considered to be "primarily" employed in a
managerial or executive capac ity. 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. at 604.
The beneficiary's proposed job description includes 'vague duties such as the beneficiary will be
responsible for "managing the company ; supervising day-to-day activities; hiring/firing personnel;
establishing the goals and policies of the company; and managing company finances." Reciting the
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient ; the
regulations require a detailed des cription of the beneficiary's daily job duties. The petitioner has failed to
provide any detail or explanation of the beneficiary's activit ies in the course of his daily routine . The
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava , 724
F.Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990) .
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely '
repeating the language of the statute or regulations does not sat isfy the petitioner's burden of proof. Fedin
Bros: Co.; Ltd. v . Sava, 724 F. Supp. at 1108 , aff'd, 90~ F. 2d 41 (2d. Cir . 1990); Avyr Associates, Inc. v.
Meissner, 1997 WL 188942 at *5 (S.D.N.Y .).
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As noted above , according to the petitioner 's statement on Form 1-129 , the U.S . company has .two
employees; who were identified as the beneficiary and the market research director. However , in
response to the director 's request for evidence , the petitioner claimed to employa third worker in the
position ofvretail operations director." Although the petitioner submitted evidence that t~is worker
· received payments as a contractor in 2005, the petitioner did not explain why he was not identified as an
employee of the company in the initial submission . 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 pet itioner submits competent objective evidence pointing to
where the truth lies. Matter ofHo, 19 I&N Dec. 582 ,591-92 (BIA 1988). Accordingly, the petitioner has
not established that it employed the retail operations director at the time of filing.
Pursuant to section 101 (a)(44)(C)of the Act, 8 U.S .C. § 1l01(a)(44)(C), if staffing levels are used asa
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take
into account the reasonable needs of the organization, in light of the overall purpose and stage of
development ·of the organization. In the present matter, however, the ' regulations provide ' strict
· evidentiary requirements for the extension ora "new office" petition and require CIS to examine the
organizational structure and staffing levels of the petitioner : .See 8 C.F .R. § 214.2(l)(14)(ii)(D). The'
regulation at 8 C.F .R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of
approval of the petit ion to support an executive orrnanagerialposition . There is no provision in CIS
regulations that allows for an extension of this one -year period. If the business does not have sufficient
staffing after Ol?-e 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 petitioner has .
not reached the point that it can employ the beneficiary in a predominantly managerial or executive
position. .
Furthermore, it is appropr iate for CIS to consider the size ofthe 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). The size ofa company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
The petitioner states that the U.S. entity . will operate a retail store. The U .S. entity employed one full­
time employee, the beneficiary as chief executive officer, and one contract employee who has not been
shown to be employed on a full-time basis. As the ben eficiary is the only full-time employee of the U.S.
· company, it appears that the beneficiary will be performing many of the various operat ional tasks inherent
in operating the retail store on a daily basis , such as acquiring products , negotiating contracts, preparing
budgets and financial statements, researching the market, marketing and sales , budgeting , bookkeeping,
paying bills, arranging store displays , receiving deliveries , and handling routine customer transactions .
Based on the 'record of proceeding, the beneficiary's job duties are principally ' composed of non­
qualifying duties that preclude him from functioning in aprimarily . managerial or executive role. Based
on the petitioner's representations , it does not appear that the reasonable needs of the petitioning company
might plausibly be met by the services of the beneficiary as the chief executive officer and one contracted
market research employee. Regardless, the rea sonable needs of the petitioner serve only as a factor in
evaluating the lack of staff in the context ofreviewing the claimed managerial or executive duties. The
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petit ioner must still establish that the beneficiary is to be employed in the United States in a primarily
managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed .
above, the petitioner has not established this essential element of eligibility .
In addition, as noted above , the petitioner submitted an organizational chart for the U .S. entity which
indicates that the beneficiary supervises a retail operations director and a market research director. In
addition , the petitioner submitted Forms 1099 for each of these individuals. The Forms 1099 for 2005
indicate that the retail operations director was compensated $2250.00 , and the market research director
was compensated $750.00 . Therefore , it does not appear that these employees were employed by the Ll.S.
entity in full-time positions. Thus, the. beneficiary was the only employee of, the U.S . entity for the
majority of the year.' In addition, the petitioner has not identified the services these individuals provide,
as requested by the director. Additionally, the petitioner has not explained how the services of the
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's business .
Without documentary evidence to support its statements , the petitioner does not meet its burden of proof
in these proceedings. Matter ofSoffici , 22 I&N Dec. 158 , 165 (Comm. 1998).
As ·discussed above, the beneficiary's job description was not sufficient to establi sh that he would be
employed in a primarily managerial or executive .capacity, and the petitioner has not identified sufficient
employees within the petitioner's organization, subordinate to the beneficiary, who would relieve the
beneficiary from performing routine duties inherent to operating the :business . The fact that the
beneficiary has been given a managerial job title and general oversight authority over the business is
insufficient to elevate his position to that of an executive or manager as contemplated by the governing
statute and regulations .
On appeal , counsel for the petitioner explains that the U.S. entity took longer to commence operations due
to a delay in obtain ing an L-l visa stamp and a delay in finalizing a lease agreement for the new office in
the United States . However , the petitioner does not explain why the U.S . Consulate delayed the
beneficiary's nonimmigrant visa application , and failed to explain why the lease agreement for the U.S.
office took nearly six months to finalize, nor does it submit any corroborating evidence in support of its
'assertions. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The petitioner
was previously required to demonstrate that it had acqu ired sufficient physical premises to house its new
office. See 8 C.F.R. § 214.2(l)(3)(v). Upon review of the current petition , it is apparent that the petitioner
was not prepared to commence doing business upon approval of its new office petition . In addition , 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Beyond the decision of the director , the record does not contain sufficient evidence that the petitioner has
been engaged in the regular, systematic , and continuous provision of goods and/or services in the United
States for the entire year prior to. filing the petition to extend the beneficiary's status . In the original
petition and on appeal, the petitioner indicates that the Ll.S. entity did not commence doing business until
November 2005 , nearly one year after the initial L-l Classification was approved. On appeal , counsel for
the petitioner indicates that the U.S. entity did not commence operations until No vember 2006 due to a
delay at the U.S. Consulate in issuing an L-l visa on behalf of the beneficiary, and a delay in obtain ing a
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Page 9
retail .store space in the United States. If a peti tion indicates that a beneficiary is coming to the United
States to open a "new office ," it must show that it is ready to commence doing business immediately upon
approval. At the time of filing the petition to open a "new office'," a petitioner must affirmatively
demonstrate that it has acquired sufficient physical premises to commence business , that it has the
financial ability to commence doing business in the United States , and that it will support thebeneficiary
in a managerial or executive position with in one year of approval. See generall y , 8 C.F.R. §
2l4 .2(l)(3)(v). If approved, the beneficiary is granted a one-year period of stay to open the "new office ."
8 C.F.R. § 214.2(l)(7)(i)(A)(3). Atthe end of the one-year period, when the petitioner seeks an extension
of the "new office" petition, the regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(B) requires the petitioner to
demonstrate that it has been doing business "for the previous year" through the regular, systematic , and
continuous provision of goods or services. See 8 C.F.R. § 2l4.2(l)(1)(ii)(H) (defining the term "doing
business"). The mere presence of an agent or office of the qualifying organization will not suffice. Id.
Since the petitioner indicated that the U.S. entity did not commence operations in the United States until
approximately nine months after the beneficiary entered the United States, the U.S. entity was not doing
business for one year prior to filing the instant petition and thus 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).
The petition will be denied for. the above stated reasons , with each considered as an independent and .
alternative basis forthe decision. In visa petition proceedings , the burden of proving eligibility for the
benefit sought remains entirely with the peti tioner. Section 291 of the Act , 8 U.S.c. § 1361. Here , that) .
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.