dismissed L-1A Case: Industrial Cleaning

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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: SRC 04 243 50254 Office: TEXAS SERVICE CENTER Date: SEP Q6 2.1
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN 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.
~~.
RObe~ief
Administrative Appeals Office
www.uscis.gov
SRC 04 243 50254
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an
L-1A 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 claims to be a corporation organized in
the State of Florid titioner claims that it is a wholly-
owned subsidiary 0 located in Sao Paolo, Brazil. 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 would 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, counsel for the petitioner asserts that the beneficiary
would be employed by the petitioner in a primarily managerial capacity. In support of this assertion, the
petitioner submits additional evidence.
To establish eligibility for the L-1 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
SRC 04 243 50254
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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)(l4)(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)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
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.
At issue in the present matter is whether the beneficiary would 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
SRC 04 243 50254
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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
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.
On the Form 1-129, Petition for a Nonimmigrant Worker, the petitioner indicated that it has two employees
and two subcontractors. In a letter dated September 9, 2004 submitted with the initial petition, the petitioner
described the beneficiary's job duties as follows:
The beneficiary will continue managing the U.S. company. Her tasks involve directing and
managing all the business activities, supervising and controlling the work of employees and
independent contractors. She also will have control over all the Company's financial matters,
budgeting and costs evaluation. In addition, she will continue holding the authority to hire
and fire employees, or promote personnel, and exercise discretion over day-to-day operations.
On October 7,2004, the director issued a request for further evidence (RFE). The director requested evidence
of business conducted during the year 2004, and evidence that the company was generating sufficient revenue
at the time the petition was filed to support a managerial position. The director also requested evidence to
show that the beneficiary has been acting primarily in a qualifying capacity including the names, titles and
duties of persons who perform the routine tasks of the business; copies of Forms 941 for the last quarter of
2003 and the first three quarters of 2004; and evidence of payment of tax. Finally, the director requested
evidence of business conducted by the foreign entity from December 2003 through September 2004 and its
payroll records for April through August 2004.
In a letter dated December 31, 2004 responding to the RFE, counsel for the petitioner stated that the U.S.
company has three employees and uses independent contractors to perform the routine duties of the business.
Counsel stated that, in addition to the beneficiary, the petitioner also employs a commercial manager
(sales/service manager) and an administrative assistant. The petitioner submitted Forms 941, Employer's
Quarterly Federal Tax Return, and Florida State Employer's Quarterly Reports for the quarters ending March
31, June 30 and September 30, 2004. These documents indicate that the petitioner had two employees at the
end of the second quarter and three employees by the end of the third quarter of 2004. The petitioner also
submitted Forms 1099-MISC for the year 2003 for two individuals whose roles in the company were not
SRC 04 243 50254
Page 5
identified. The petitioner submitted payroll records for the foreign entity for the months January through May
2004, which indicate that the beneficiary and the commercial manager were also on the payroll of the foreign
entity during that time period.
On January 14, 2005, the director denied the petition. The director found that "[i]t is not reasonable to
conclude that a company engaged in industrial cleaning would require the services of three office personnel,
two performing at a management level, while only requiring the services of two contract employees
performing the routine tasks that generate revenue." The director further observed that based on the wages
paid and the company's limited revenues, it is not credible that there is sufficient work at the management
level for the beneficiary to perform in a primarily managerial or executive capacity on a full-time basis.
Consequently, the director concluded that the petitioner has not sufficiently demonstrated that the beneficiary
would be employed by the petitioner in a primarily managerial or executive capacity.
On appeal, counsel for the petitioner asserts that "the size of the company and the number of employees is
irrelevant" in determining eligibility for L-l classification. Counsel maintains that the beneficiary "manages
the entire business" while the commercial manager manages the staff that provides the cleaning service.
Counsel claims that the beneficiary directly supervises the administrative assistant, who "bills customers,
answers the phone and makes bank deposits among other things." Counsel also asserts that the wage
expenses of the U.S. company as stated in the company's tax filings cover only part of the employees'
remuneration, as both the beneficiary and the commercial manager continue to be paid by the foreign entity.
Since the U.S. entity is still being supported by the foreign entity, counsel asserts, the size of its revenue
should not be relevant in considering the beneficiary's eligibility for L-l classification. The petitioner submits
further evidence on appeal, including the U.S. company's tax return, balance sheet and cash disbursement
journal for the year 2004; Forms W-2 for its three employees and form 1099-MISC for one contractor for the
year 2004; and copies of two agreements for services to be rendered by the U.S. entity to its clients.
On review of the petition and evidence, the AAO finds that the petitioner has not established that the
beneficiary would be employed in the United States in a 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. § 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. On review, the petitioner has provided a vague and
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary would do on
a day-to-day basis. For example, the petitioner stated that the beneficiary's duties include "directing and
managing all the business activities," "supervising and controlling the work of employees and independent
contractors," exercising "control over all the Company's financial matters," and "exercis[ing] discretion over
day-to-day operations." 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 answer a critical question in this case: What would the beneficiary primarily do
on a daily basis? 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). Conclusory
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language
SRC 04 243 50254
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of the statute or regulations does not satisfy the petitioner's burden of proof. Id.; Avyr Associates, Inc. v.
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
Moreover, the AAO notes that the petitioner has failed to provide any description of the duties of the staff as
the director had requested specifically in the RFE.
1
This evidence is critical as it would have shed light upon
the roles and responsibilities of the beneficiary and other employees within the organization, and would have
aided in the determination of whether the beneficiary would indeed function primarily in a managerial or
executive capacity. The purpose of the request for evidence is to elicit further information that clarifies
whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R.
§§ 103.2(b)(8) and (12). The 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).
Similarly, the petitioner has failed to provide sufficient evidence to show that it utilizes independent
contractors to perform the company's routine services as claimed. While the petitioner did produce Forms
1099-MISC for the year 2004 for two individuals, the petitioner has provided no other evidence that would
identify the nature or duration of the services these individuals performed for the company. Without further
information, it cannot be determined how the services of these individuals might obviate the need for the
beneficiary to primarily perform the tasks necessary to provide the company's services, rather than supervise
or manage the petitioner's business as the petitioner claimed. 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
Int'l., 19 I&N Dec. 593,604 (Comm. 1988).
The petitioner claims that the beneficiary "supervise[s] and control[s] the work of employees and independent
contractors." Although the beneficiary is not required to supervise personnel, if it is claimed that her duties
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. Here, while the petitioner claims that there is
one employee under the supervision of the beneficiary with a managerial title, without further information
regarding the duties of the petitioner's employees, it cannot be determined whether either of the beneficiary's
subordinates actually function in a managerial or supervisory capacity. Similarly, there is no information on
record to establish that either of the beneficiary's subordinates possess an advanced degree, or that their
positions require an advanced degree, such that they could be classified as professionals. Thus, the petitioner
1 The AAO notes counsel's statement on appeal that the beneficiary "manages the entire business," the
commercial manager manages the staff that provides the cleaning service, and the administrative assistant
"bills customers, answers the phone and makes bank deposits among other things." However, such
information should have been provided in response to the RFE. Further, without documentary evidence to
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988);
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA
1980).
SRC 04 243 50254
Page 7
has not shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as
required by section 101(a)(44)(A)(ii) of the Act.
Finally, counsel's contention on appeal that "the size of the company and the number of employees is
irrelevant" in this context is not persuasive. The AAO acknowledges that a company's size alone, without
taking into account the reasonable needs of the organization, may not be the determining factor in approving a
visa for a multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C).
However, it is appropriate for the Citizenship and Immigration Services (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). In addition, 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 , in reviewing the relevance of the number of employees a petitioner has, federal courts have
generally agreed that CIS "may properly consider an organization's small size as one factor in assessing
whether its operations are substantial enough to support a manager." Family, Inc. v. U.s. Citizenship and
Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS,
923 F.2d 175 , 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003).
Furthermore , the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be
"primarily" employed in a managerial or executive capacity as required by the statute. See sections
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). In this instance , particularly in light of the lack of
evidence of employees or contractors who would perform the non-qualifying operations of the business as
discussed above, the record is insufficient to show that the beneficiary would be "primarily" employed in a
managerial or executive capacity.
Based on the foregoing, the AAO agrees with the director's conclusion that the petitioner has failed to
establish that the beneficiary would be employed in the United States in a primarily managerial or executive
capacity, as required by 8 C.F.R. § 214.2(1)(3).
Beyond the decision of the director, the AAO finds that the record is insufficient to establish that a qualifying
relationship exists between the foreign and U.S. entities as required under 8 C.F.R. § 214.2(1)(3)(i). The
regulations and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between the U.S. and foreign entities for purposes of this
visa classification. Matter of Church Scientology International, 19 I&N Dec. at 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). 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 ofChurch Scientology International , 19 I&N
Dec. at 595.
SRC 04 243 50254
Page 8
The petitioner claimed on the L Supplement to Form 1-129 that the U.S. entity is wholly-owned by the foreign
entity. However, the petitioner has not provided any evidence whatsoever relating to the ownership or control
of the U.S. entity to support that claim. Documentation such as corporate stock certificates, stock ledger,
stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must 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., 19 I&N Dec. 362. Without full disclosure of all relevant documents, CIS is unable to
determine the elements of ownership and control, and consequently, cannot determine whether a qualifying
relationship exists between the foreign and U.S. entities. For this additional reason, the petition will be
denied.
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 for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 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, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.