dismissed L-1A Case: Improvement Services

identifyingdata deleted to
prevent cl~arly unwarranted
invasionofpersonalprivacy
PUBLICrOfly
U.S. Department ofHomeJand Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services b 7
FILE: SRC 05 11651782 OFFICE: TEXAS SERVICE CENTER Date: APR 0 5 lft61
IN RE: 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 05 11651782
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its 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, a Texas limited liability company, states that it is
engaged in the provision of commercial and residential improvement services. It claims to be an affiliate of
Carisa, S.A. de C.V., located in Mexico. The beneficiary was initially granted a one-year period in L-IA
status in order to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay for three additional years.
The director denied the petition concluding that the petitioner had not established that the beneficiary would
be employed in a primarily managerial or executive capacity in the United States.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director's decision was
based on erroneous assumptions, and that the director "misinterpreted, misread and misapplied" the statute
and regulations. Counsel further contends that the director placed undue emphasis on the size of the
petitioning company in determining that the beneficiary would not be employed in a primarily managerial or
executive capacity. Counsel submits a brief and additional evidence in support of the appeal.
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 the three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her
services to the same employer or a subsidiary or affiliate 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 lmowledge and that the alien's prior
education, training and employment qualifies him/her to perform the intended
SRC 05 116 51782
Page 3
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 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 m
paragraph (l)(1)(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 sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition.
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--
(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
SRC 05 116 51782
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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. § 1 101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the
employee primarily--
(i) directs the management ofthe 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 ofthe organization.
The nonimmigrant visa petition was filed on March 17, 2005. In an appended statement, the petitioner
described the beneficiary's proposed duties as president as follows:
He will continue to direct, supervise, and coordinate, with the assistance of a staff. As a key
executive/managerial employee, he will continue to be responsible for the operations of the
company that includes the supervision and coordination of all the operational activities of the
business enterprise.
* * *
The position involves the management of the business enterprise operations including:
• Planning, developing and implementing operations strategy;
• Developing and implementing policies and procedures for company operations;
• Determining mark up percentages necessary to insure profit, based on estimated budget,
profit goals and average rate of turnover;
• Developing policies and procedures for procurement of services;
• Coordinating the operations of the company;
• Direct development and preparation of all procurement specifications pertinent to the
operational requirements of the company.
• Planning and implementing new operating procedures to improve efficiency and reduce
costs;
• Planning, directing, and coordinating the efforts of the company's workforce;
• Establishing schedules to maximize the productivity of the employees and coordinating
activities to ensure the highest levels of work performance; and
SRC0511651782
Page 5
• Hire, train, and supervise employees.
The petitioner stated on Form 1-129 that the company has three employees. The petitioner also submitted an
organizational chart depicting the beneficiary as president over a manager who in turn
supervises a sales representative and a customer service employee
_ The chart shows that the manager also serves as a project supervisor, with responsibility for
managing laborers.
On March 30, 2005, the director issued a request for evidence, in part, instructing the petitioner to submit the
following: (1) a list of all duties performed by the beneficiary and the percentage of time spent on each duty;
(2) position descriptions for all other current employees, including documentary evidence of their educational
credentials; (3) an explanation as to who provides the business's products or services; (4) copies of quarterly
wage reports for the past year; (4) evidence that the petitioner employs the "laborers" identified on the
organizational chart, including information regarding the positions held, duties performed, number of hours
worked, and copies of IRS Forms 1098 and 1099 for 2004 for each worker; and (5) copies of employment
agreements/contracts between the petitioner and each of the contract workers.
In a response dated June 21, 2005, counsel for the petitioner provided the following job description for the
beneficiary's position:
• 20% Developing and implementing policies and procedures for company operations;
• 20% Determining mark up percentages necessary to insure profit, based on estimated
budget, profit goals and average rate of turnover;
• 20% Developing policies and procedures for procurement of services;
• 15% Direct development and preparation of all procurement specifications pertinent to
the operational requirements of the company;
• 15% Planning, directing, and coordinating the efforts of the company's workforce, also
hiring of employees;
• 10% Establishing schedules to maximize the productivity of the employees and
coordinating activities to ensure the highest levels of work performance[.]
The petitioner identified the beneficiary's subordinates as an office manager a part-time
field supervisor, and a sales person The petitioner stated that the office
manager administers human resources programs, manages the company's finances, manages all staff,
coordinates schedules to maximize the productivity of the employees, negotiates with suppliers and
contractors, and maintains office equipment and supplies. The petitioner noted that the part-time field
supervisor is responsible for establishing and managing relationships with contractors, developing quality
control strategies, motivating and organizing the "team," formulating profit and loss reports on accounts and
projects, and meeting with customers or potential customers to discuss "needs and desires for developing a
schedule." Finally, the petitioner stated that the sales person is responsible for managing sales calls, contracts,
design of remodeling projects, bids and proposals, developing sales goals and marketing strategies,
formulating service orders and reports, formulating profit and loss reports on new projects, and interviewing
clients at the beginning and end of projects to address concerns and guarantee customer satisfaction.
SRC 05 11651782
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The petitioner submitted a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, for the first
quarter of 2005, which confirms the employment of three workers as of the date the petition was filed. The
petitioner provided copies of four Forms W-2, Wage and Tax Statement, for 2004, along with seven Forms
1099-MISC, Miscellaneous Income, for payments made to contract laborers.
The petitioner also submitted a list of ten contractors and identified each individual's area of specialization.
The petitioner noted that the sub-contractors are paid according to a pre-arranged percentage of the value of
the service to be provided, and not by the hour, and that they "work under their own schedule," according to a
start date and a finish date established by the u.S. company. The AAO notes that the individual originally
identified on the petitioner's organizational chart as a customer service employee appears on the petitioner's
list of contractors as a provider of wallpapering and painting services.
~itioner also submitted employment agreements for and _
_ According to the agreements, each employee was hired to perform: "All duties related to remodeling,
construction, painting and general handyman services related to commercial and residential buildings, homes,
structures and properties in general." The employment agreements show that ••••••••• 11••
••••were hired in May and July 2004, respectively, at an hourly wage of $8.00, while~as
hired in December 2004 at an hourly wage of $6.00.
The director denied the petition on September 1, 2005, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director noted the discrepancy between the petitioner's claimed staffing levels and its quarterly
tax return, which indicated that the company employs only three, rather than four, employees. The director
further noted that the petitioner failed to submit its quarterly wage reports in their entirety, thus it had not
demonstrated which employees were actually employed as of the date of filing. The director further found,
upon review of the subcontractor agreements, Form 1120, and Forms 1099, that the contract employees "were
not functioning as employees of the petitioner's company." The director determined that it appeared the
contract workers were only employed on a few occasions.
In addition, the director found no evidence demonstrating that either of the beneficiary's subordinates would
function in a professional, managerial or supervisory capacity, or that the petitione~ had a sufficient staff at
the end of the first year of operations to relieve the beneficiary from having to perform non-qualifying duties.
The director concluded that the beneficiary has been and would be engaged primarily in performing the
functions of the business rather than performing primarily managerial or executive duties.
On appeal, counsel for the petitioner addresses each of the director's observations regarding the submitted
evidence. Counsel asserts that "there are no inconsistencies in the number of employees of the petitioning
entity." Counsel notes that the company employed four employees in 2004, and in 2005, the salesperson left
the company and was replaced by , a shareholder of the company who performs the
sales and marketing but does not yet receive a salary. Counsel further contends that the director should not
have relied on wages paid to the petitioner's contractors in 2004 to determine that the petitioner only utilizes
their services on an occasional basis. Counsel states that the petitioner did not start operating until "months
after" March 2004, and thus the Form 1120 and Forms 1099 did not reflect a full year of wages paid to the
employees or contractors. Counsel asserts that, contrary to the director's findings, the petitioner does in fact
require the services of a part-time supervisor, and that the company employs an increasing number of
SRC 0511651782
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subcontractors as its business expands. Counsel further objects to the director's detennination that the
contractors should not be considered employees of the company, noting that the petitioner's office manager
and field supervisor are directly involved in selecting sub-contractors for specific assignments and monitoring
their work.
With respect to the beneficiary's employment capacity, counsel asserts that "the Service is not taking into
consideration the nature, needs and function of the petitioning entity when determining whether the
beneficiary is or not an executive." Counsel suggests that the director has a "stereotype" of the type of entity
which requires a manager or executive, yet fails to take into account that the beneficiary performs executive
duties that are "adjusted to the needs of a 'Residential and Home Improvement Business.''' Counsel cites
several unpublished AAO decisions to stand for the proposition that a beneficiary may serve in a managerial
or executive capacity even if he is the only employee of a company. Counsel asserts "the Service is using a
narrow interpretation of the Act, federal regulations, and legal precedence [sic] when asserting that a few
number of employees can not perform the company's day-to-day operations to the point that the President of
the company must deviate from his duties so that he is not "primarily" performing executive level duties."
Counsel further contends that the director ignores "that the definitions of executive and managerial capacity
prior to IMMACT 90 contained an exclusion for individuals who spent a substantial proportion of their time
actually participating in the production of the product or service marketed by the employer," but that this
exclusion has been omitted. Counsel suggests that the director "capriciously determined" the number of
employees the petitioner requires to perform the day-to-day operations of the business. Counsel concludes
that the petitioner has provided "sufficient and ample evidence" that the beneficiary's job duties will be in an
executive capacity.
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 primarily managerial or executive 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(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
in either an executive or a managerial capacity. Id.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner
must show 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). The test is basic to ensure that a person not only has the requisite
authority, but that a majority of his or her duties are related to operational or policy management, not to the
supervision of lower-level employees or the performance of the duties of another type of non-managerial or
non-executive position.
The fact that the beneficiary manages a business does not necessarily establish eligibility for classification as
an intracompany transferee in a managerial or executive capacity within the meaning of sections
101(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(15)(L)
of the Act does not include any and every type of "manager" or "executive"). While the AAO does not doubt
SRC 0511651782
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that the beneficiary exercises discretion over the petitioner's day-to-day operations and has the appropriate
level of authority, the petitioner has failed to show that his duties will be primarily in a managerial or
executive capacity.
Although the petitioner has provided a breakdown of how the beneficiary's time will be divided among his
various responsibilities, the job description provided is too ambiguous to convey any understanding of what
tasks the beneficiary will perform on a day~to-day basis. For example, the petitioner indicated that the
beneficiary would devote a total of 40 percent of his time to "developing and implementing policies and
procedures," but failed to elaborate as to any specific policies developed or why this responsibility would
continue to require the largest portion of his time now that the company has been established. Similarly, the
petitioner indicated that the beneficiary would allocate 20 percent of his time to determining "mark up
percentages" but did not explain the specific tasks involved, or how this duty would require such a large
proportion of his time on a day-to-day basis. The petitioner further indicated that the beneficiary would spend
15 percent of his time to "direct development and preparation of all procurement specifications," but neither
explained to what "procurement specifications" it was referring, nor identified who on its staff actually
prepares such specifications. Overall, these responsibilities, which purportedly require 75 percent of the
beneficiary's time, provide little insight into the nature of the beneficiary's daily duties. 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 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).
Moreover, the director specifically advised the petitioner that the initial position description submitted, which
included a list of ten vaguely defined duties, was insufficient to establish his employment in a primarily
managerial or executive capacity. In response, the petitioner simply re-submitted the same job description,
with the exception of four job duties that were deleted, and assigned the above-referenced percentages to
them. 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 information provided by the
petitioner in its response to the director's request for further evidence did not clarify or provide more
specificity to the original duties of the position. 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. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Califomi a, 14 I&N Dec. 190 (Reg. Comm.
1972)).
Without a comprehensive description of the beneficiary's duties upon which to rely, the director reasonably
reviewed the petitioner's staffing levels to determine whether the record as a whole supported the petitioner's
claim that the beneficiary would be employed in a primarily executive capacity. Beyond the required
description of the job duties, CIS reviews the totality of the record when examining the claimed managerial or
executive capacity of a beneficiary, including the petitioner's organizational structure, the duties of the
beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from
performing operational duties, the nature of the petitioner's business, and any other factors that will contribute
to a complete understanding of a beneficiary's actual duties and role in a business.
SRC 05 11651782
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As noted by the director, the record contains numerous inconsistencies regarding the number of employees at
the time of filing and their actual roles within the company. At the time of filing, the petitioner stated that it
had three employees and submitted an organizational chart depicting four employees filling the positions of
president, manager/field supervisor, customer service, and sales representative. In response to the director's
request for evidence, submitted in June 2005, the petitioner indicated that the person originally identified as a
sales representative is a part-time field supervisor, and that the individual previously identified as a customer
service employee is actually a contract laborer who provides wallpapering and painting services. The
petitioner also identified as the company's sales representative on the organizational chart
submitted in June 2005, but now on appeal counsel states that this employee left the company in 2004, while
another individual has been performing the sales representative's duties without receiving a salary "since
2005." Counsel states that there is no discrepancy, yet fails to explain why the petitioner claimed to employ
_six months after he left the company, and failed to clarify the above-noted discrepancies
regarding its staffing. Finally, the AAO notes that the employment agreements submitted for each of the
petitioner's current and previous payroll employees indicate that they were hired to perform "all duties related
to remodeling, construction, painting and general handyman services," not the duties of an office manager, a
sales representative, and a field supervisor.
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591­
92 (BIA 1988). When a petition includes numerous discrepancies, and the petitioner fails to resolve those
errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise serious
concerns about the veracity of the petitioner's assertions. 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. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Thus, while it appears that the petitioner employed the beneficiary, at
the time the petition was filed, and utilized the services of contracted laborers, the discrepancies catalogued
above raise serious doubts regarding the actual employment capacity of the beneficiary's subordinates. Further
as noted by the director, the petitioner did not provide sufficient evidence of wages paid to its employees
during the quarter in which the petition was filed, and the AAO cannot determine whether the employees
worked on a full-time or a part-time basis. The petitioner has not submitted evidence on appeal to cure this
deficiency. Based on the evidence submitted, it appears that the beneficiary's subordinate employees worked
on a part-time basis in 2004, as they earned total wages of$4,618 and $3,672, respectively, over a six-month
period. The total wages paid during the first quarter of 2005 are essentially the same as those paid during the
last quarter of 2004, thus suggesting that the beneficiary's subordinates continued to be employed on a part­
time basis at the time offiling.
Although the beneficiary is not required to supervise personnel, if it is claimed that the beneficiary is
employed in a managerial capacity based on his supervisory duties, the petitioner must establish that the
subordinate employees are supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The
petitioner claims that the beneficiary supervises one office manager and one field supervisor, however, as
noted above, the employment contracts for these claimed employees suggests that they in fact perform the
services of the company. Further, even if one or both of these employees does perform supervisory duties,
the petitioner has indicated that the beneficiary devotes only approximately 15 percent of his time to
SRC 05 11651782
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supervising subordinates. The petitioner is still required to demonstrate that the beneficiary's duties as a
whole are primarily managerial or executive. The fact that the beneficiary supervises one part-time
supervisory employee is insufficient to establish that the beneficiary will be primarily performing managerial
duties.
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager or executive.
See § 101(a)(44)(C) of the Act, 8 U.S.C. § I 101(a)(44)(C). However, 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). The size of a company may be especially
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id.
Moreover, the regulations provide strict evidentiary requirements for the extension of a "new office" petition
and require CIS to examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. §
214.2(1)(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 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 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.
At the time of filing, the petitioner was a one-year-old remodeling and construction services company which
employed the beneficiary as president, and two employees who are claimed to work as an office manager and
a part-time field supervisor. As discussed above, the terms of the employment contracts submitted for these
employees raise serious questions regarding their actual duties, and the evidence submitted does not establish
that either of the beneficiary's subordinates was employed on a full-time basis. Although counsel now claims
on appeal that the petitioner has employed an unsalaried sales representative throughout 2005, the petitioner's
earlier indication that two different individuals in fact filled this role casts doubt on the petitioner's claim.
Again, 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. Matter ofHo, 19
I&N Dec. at 591. At most, it appears that the beneficiary's subordinates would provide the general
contracting and remodeling services of the company, and perhaps some administrative and clerical tasks. The
petitioner has not established that it employed anyone to perform the duties of the sales representative, who is
claimed to be responsible for handling sales calls, bids and proposals, designing remodeling projects,
formulating service orders, and performing customer-service related tasks. Therefore, it is reasonable to
assume, and has not been show otherwise, that the beneficiary, as the petitioner's sole full-time employee,
would be responsible for directly marketing and selling the company's services, devising marketing plans,
contacting advertisers, and performing any customer service tasks. The record does not demonstrate that these
duties would be incidental to the beneficiary's claimed managerial or executive responsibilities.
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. 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
SRC 05 11651782
Page 11
(requiring that one "primarily" perfonn the enumerated managerial or executive duties); see also Matter of
Church Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988).
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium
size businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel
to relieve the beneficiary from perfonning operational and administrative tasks. Moreover, to establish that
the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must specifically
articulate why those needs are reasonable in light of its overall purpose and stage of development. In the
present matter, the petitioner has not established the basic eligibility requirement in this matter, that the
beneficiary is primarily performing managerial or executive duties.
Additionally, counsel observes that Congress omitted the language that discussed individuals who produce a
product or provide a service from the Immigration Act of 1990 and asserts that this is a clear indicator that
such individuals are not precluded from qualifying as multinational managers or executives. However, the
AAO will not draw this conclusion based solely on an omission. Despite the changes made by the
Immigration Act of 1990, the statute continues to require that an individual "primarily" perform managerial or
executive duties in order to qualify as a managerial or executive employee under the Act. The word
"primarily" is defined as "at first," "principally," or "chiefly." Webster's II New College Dictionary &77
(2001). Where an individual is "principally" or "chiefly" performing the tasks necessary to produce a product
or to provide a service, that individual cannot also "principally" or "chiefly" perform managerial or executive
duties. Counsel submits no evidence in the form of congressional reports, case law, or other documentation to
support his argument. Accordingly, counsel's unsupported assertions are not persuasive on this point.
Counsel further refers to several unpublished decisions in which the AAO determined that the beneficiary met
the requirements of serving in a managerial and executive capacity for L-I classification even though he was
the sole employee or the manager of a small company. Counsel has furnished no evidence to establish that
the facts of the instant petition are analogous to those in the unpublished decisions. While 8 C.F.R. § 103.3(c)
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act,
unpublished decisions are not similarly binding.
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 support an executive or managerial position. There is no provision in CIS
regulations that allows for an extension of this one-year period. 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
this reason, the appeal will be dismissed.
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. Here, that burden has not been met.
ORDER: The appeal is dismissed.