dismissed L-1A Case: Information Services

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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: SRC 05 17451894 Office: TEXAS SERVICE CENTER Date: FEB 22 ZUGI
INRE: 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)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
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4/~7' /J i~,(/t'~/t,:,/.......;fa.L;fat--..
''/- Robert P. -Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 174 51894
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 dismissed.
The petitioner is a Florida corporation and claims to be engaged in professional and technical information
services. The petitioner states that it is a subsidiary of cated in
Venezuela. The U.S. entity petitioned Citizenship and Immigration Services (CIS) to classify the
beneficiary as a nonimmigrant intracompany transferee (L-lA) pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner seeks to employ the
beneficiary's services as the general manager of its new office in the United States.
On June 16, 2005, the director denied the petition on the grounds that the petitioner failed to establish: (I)
that the beneficiary has at least one year of continuous full-time employment abroad within the three
years immediately preceding the filing of the petition; (2) that the beneficiary was employed in a
primarily executive or managerial capacity by the foreign company; and (3) that a qualifying relationship
exists between the U.S. company and the foreign company.
The petitioner subsequently filed an appeal on July 13, 2005. 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 has at least one year of continuous employment with the foreign company even though he has
been present in the United States pursuant to an F-1 classification since January 2003. The petitioner
states that the beneficiary was "working at home" as a consulting system manager for the foreign
company. In addition, the petitioner states that the beneficiary's position with the foreign company
"involves specialized knowledge and is a managerial position." Finally, the petitioner clarifies certain
issues discussed in the decision regarding the qualifying relationship between the U.S. entity and the
foreign company.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
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 (l)(l )(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.
SRC 05 174 51894
Page 3
(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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary
is coming to the United States as a manager or executive to open or to be employed in a new office in the
United States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involved executive or managerial authority over the new operation;
and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(1)(ii)(B) or (C)
of this section, supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of the foreign
entity to remunerate the beneficiary and to commence doing business in the United
States; and
(3) The organizational structure of the foreign entity.
The first issue to be addressed is whether the beneficiary 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.
Upon review of the record, the petitioner claims that the beneficiary began his employment with the
parent company abroad, located in Venezuela, in November 2002.
In January 2003, the bene iciary entere into t e Unite States pursuant to an F-I nonimmigrant
classification in order to obtain his Bachelor of Science Degree in Business Administration from the
University of Tulsa in Oklahoma. Subsequently, the petitioner submitted the current petition in order to
change the beneficiary's status from F-1 to L-l A classification, so that the beneficiary may commence his
SRC 05 17451894
Page 4
employment with the U.S. entity and open a new office for the petitioner. Thus, the beneficiary was
employed abroad with the foreign company from November 2002 until January 2003, approximately two
months in total.
In the denial, the director indicated that the beneficiary was employed abroad with the foreign company
for approximately two months. The director stated "that the beneficiary has been in daily contact with the
foreign affiliate is insufficient." The director asserted that the regulations are clear that the beneficiary
must have been employed abroad for one year for the foreign company outside of the United States.
On appeal, the petitioner fails to present evidence that the beneficiary was employed by the petitioner
abroad in a managerial or executive position for one year within three years prior to applying for
admission into the United States. The petitioner asserts that even though the beneficiary has been present
in the United States since January 2003, he is still working for the parent company abroad as follows:
When we say that he has been in daily contact with his department what we meant was
"WORKING AT HOME" from a computer actually working for us as a CONSULTING
SYSTEM MANAGER[.] He has managed what we consider to be one of the most
important departments of our company, with the help of the 2 analysts and the secretary
that report to him. During this time he went to Venezuela two times for the annual
meetings of the company when we needed him and weekly meetings are held over the
Internet which is a common practice in this type of companies and positions. The
position was designed to be home-based, even if [the beneficiary] were in Venezuela.
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(A) defines "intracompany transferee" as:
An alien who, within three years preceding the time of his or her application for
admission into the United States, has been employed abroad continuously for one year by
a firm or corporation or other legal entity or parent, branch, affiliate or subsidiary thereof,
and who seeks to enter the United States temporarily in order to render his or her services
to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity
that is managerial, executive or involves specialized knowledge. Periods spent in the
United States in lawful status for a branch ofthe same employer or a parent, affiliate, or
subsidiary thereof and brief trips to the United States for business or pleasure shall not
be interruptive of the one year of continuous employment abroad but such periods shall
not be counted toward fulfillment ofthat requirement.
(Emphasis added.)
Thus, the petitioner failed to submit evidence that the beneficiary was employed abroad for one
continuous year since he indicated on his appeal that he commenced his employment with the foreign
company in November 2002 and has been present in the United States since January 2003, and did not
submit evidence that he worked for a continuous year abroad prior to that date.
In addition, in a support letter dated May 20, 2005, the petitioner states that "[the beneficiary] has worked
in several foreign businesses in the past 3 years." Without further explanation, it appears that the
SRC0517451894
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beneficiary has not been employed by the foreign company since November 2002, but instead has been
employed by other employers. 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).
The petitioner failed to submit evidence of his employment with the foreign company for one continuous
year prior to entering the United States, but rather explains that he has been present in the United States
since November 2002 and has worked for the parent company from the U.S. The petitioner submits no
evidence in support of this claim. 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 California, 14 I&N Dec. 190 (Reg.
Comm. 1972». Regardless, even if the beneficiary performs certain duties on behalf of the foreign entity
while in the United States on an F-l visa, these activities cannot be considered qualifying full-time
employment with the foreign entity. Based on the foregoing discussion, the appeal will be dismissed.
The second issue to be addressed in this proceeding is whether the petitioner submitted sufficient
evidence to establish that the beneficiary has been employed in a managerial or executive capacity by the
foreign entity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(15)(L), provides:
The term "managerial capacity" means an assignment within an organization In which the
employee primarily-
1. manages the organization, or a department, subdivision, function, or component
of the organization;
11. 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;
111. 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), provides:
SRC 05 17451894
Page 6
The term "executive capacity" means an assignment within an organization III which the
employee primarily-
1. directs the management of the organization or a major component or function of
the organization;
11. establishes the goals and policies of the organization, component, or function;
111. 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 nonimmigrant petition was filed on June 3, 2005. As discussed above, the petitioner did not submit
sufficient documentation to establish that the beneficiary was employed by the foreign company for at least
one continuous year prior to entering the United States. In addition, even if the petitioner would be able to
provide documentation of his employment with the company abroad for one continuous year prior to entering
the United States, the evidence does not establish that the beneficiary was employed by the foreign company
in a primarily managerial or executive capacity.
The petitioner submitted a job description for the beneficiary's position with the foreign company with the
original petition. According to the job description, it appears that the beneficiary managed the company's
information technology systems including backup, security, technical assistance, and maintenance and
modification of the databases. The petitioner also submitted an organizational chart of the foreign company
which indicated that the beneficiary supervised two analysts. According to the job descriptions submitted of
the business analysts, it appears that these employees would assist the beneficiary in maintaining the
company's computer systems and provide customer support to all staff and users.
The director denied the petition and stated that the petitioner had not established that the beneficiary was
employed in a managerial or executive capacity with the foreign company.
On appeal, the petitioner states that the beneficiary's employment with the foreign company "involves
specialized knowledge and is a Managerial position." The petitioner further asserts that "in order to develop,
direct and manage systems an individual needs a highly specialized body knowledge as well as implement
advances in technology and modifications in existing data bases." The petitioner also resubmits a similar job
description to the one previously submitted.
On review, the petitioner's assertions are not persuasive. 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 and indicate whether such duties are in a managerial or executive 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 prove that the beneficiary primarily performs these specified responsibilities and does not
SRC0517451894
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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 petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner stated vague
duties such as "direct daily operations of department, analyzing workflow, establishing priorities,
developing standards and setting deadlines"; and "evaluate the organization's technology use and needs
and recommend improvements." 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. at 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990). The petitioner's descriptions of the beneficiary's position do not identify the actual duties to
be performed, such that they could be classified as managerial or executive in nature.
The job description also includes several non-qualifying duties such as "develop computer information
resources, pricing for data security and control, strategic computing, and disaster recovery"; "control
operational budget and expenditures"; and "develop method for integrating different products so they
work properly together, such as customizing commercial databases to fit specific needs of the company."
As the beneficiary is developing the required systems for the company and modifying and maintaining the
databases, it appears that the beneficiary was providing the information technology services of the
business rather then directing such activities through subordinate employees. An employee who
"primarily" performs the tasks necessary to produce a product or provide a service is not considered to be
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also
Matter of Church Scientology International, 19 I & N Dec. 593,604 (Comm. 1988).
A managerial or executive 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. See Matter
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). In the instant petition, the
beneficiary supervised two business analysts. It appears that the beneficiary was a first-line supervisor
and the record does not demonstrate that the beneficiary functioned primarily as a manager or executive.
In addition, on appeal, the petitioner asserts that the beneficiary possesses a specialized knowledge. On
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy, or the associated job responsibilities. The
petitioner must establish that the position offered to the beneficiary when the petition was filed merits
classification as a managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249
(Reg. Comm. 1978). A petitioner may not make material changes to a petition in an effort to make a
deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc.
Comm. 1998).
Petitioner's request to amend the petition on appeal is not properly before the AAO. The regulations at 8
C.F.R. § 214.2(l)(7)(i)(C) state:
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The petitioner shall file an amended petition, with fee, at the service center where the
original petition was filed to reflect changes in approved relationships, additional
qualifying organizations under a blanket petition, change in capacity of employment
(i.e. from a specialized knowledge position to a managerial position), or any
information which would affect the beneficiary's eligibility under section
101(a)(l5)(L) of the Act.
The request to reconsider the original petition on appeal as a petition for L-IB specialized knowledge
classification is, therefore, rejected.
Based upon the lack of a comprehensive job description, it cannot be concluded that the beneficiary has
been employed by the foreign entity in a managerial of executive capacity.
The third issue in this proceeding is whether a qualifying relationship exists between the foreign company
and the United States entity. To establish a "qualifying relationship" under the Act and the regulations,
the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer is the
same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as
"affiliates." See generally section 101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1).
The director stated in the decision that the U.S. company's IRS Form 1120, U.S. Corporation Income Tax
Return, for 2004, indicated in Schedule K, question 4, that the petitioner is not a subsidiary of an affiliated
group or a parent-subsidiary controlled group. On appeal, the petitioner asserts that the answer on Form
1120 for 2004 was a mistake made by the accountant. The petitioner explained that the accountant used a
software program to prepare the tax return and the answer "no" is the default answer for the program.
On review, the evidence submitted is sufficient to establish that a qualifying relationship exists between
the foreign company and the United States entity.
As general evidence of a petitioner's claimed qualifying relationship, the petitioner may submit stock
certificates, the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the
minutes of relevant annual shareholder meetings must also be examined to determine the total number of
shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and
its effect on corporate control. In the instant matter, the petitioner submitted the articles of incorporation
for the foreign company and the United States company. In addition, the petitioner submitted stock
certificate number 1 indicating that the foreign company owns 51% of the United States entity. The AAO
will withdraw this part of the director's decision.
Beyond the decision of the director, the record is not persuasive in demonstrating that the beneficiary
would be employed in a managerial or executive capacity as defined at section 101(a)(44) of the Act.
When a new business is established and commences operations, the regulations recognize that a
designated manager or executive responsible for setting up operations will be engaged in a variety of
activities not normally performed by employees at the executive or managerial level and that often the full
range of managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant
classification during the first year of operations, the regulations require the petitioner to disclose the
business plans and the size of the United States investment, and thereby establish that the proposed
SRC0517451894
Page 9
enterprise will support an executive or managerial position within one year of the approval of the petition.
See 8 C.F.R. § 214.2(l)(3)(v)(C). This evidence should demonstrate a realistic expectation that the
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full
operations, where there would be an actual need for a manager or executive who will primarily perform
qualifying duties.
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a
minimum, a description of the business, its products and/or services, and its objectives. See Matter ofHo,
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory
requirements for the alien entrepreneur immigrant visa classification, Matter ofHo is instructive as to the
contents of an acceptable business plan:
The plan should contain a market analysis, including the names of competing businesses
and their relative strengths and weaknesses, a comparison of the competition's products
and pricing structures, and a description of the target market/prospective customers of the
new commercial enterprise. The plan should list the required permits and licenses
obtained. If applicable, it should describe the manufacturing or production process, the
materials required, and the supply sources. The plan should detail any contracts executed
for the supply of materials and/or the distribution of products. It should discuss the
marketing strategy of the business, including pricing, advertising, and servicing. The plan
should set forth the business's organizational structure and its personnel's experience. It
should explain the business's staffing requirements and contain a timetable for hiring, as
well as job descriptions for all positions. It should contain sales, cost, and income
projections and detail the bases therefore. Most importantly, the business plan must be
credible.
Id.
The petitioner failed to provide a business plan for the U.S. entity. The petitioner also failed to explain
the proposed staffing level for the U.S. entity, the scope and nature of the proposed business activities, the
funding required to commence the U.S. operations and the feasibility of the U.S. entity to succeed and
reach its goals. The petitioner has not submitted sufficient evidence to establish that the intended United
States operations, within one year of approval, will support an executive or managerial position. For this
additional reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner did not provide sufficient evidence to establish that a
sufficient financial investment has been made in the United States company, as required by 8 C.F.R. §
214.2(l)(3)(v)(2). The petitioner did not submit a business plan outlining the anticipated expenses
required to commence the U.S. operations. In addition, the petitioner did not submit any documentation
to evidence that the foreign parent company has deposited the needed amount of capital in the U.S.
entity's bank account, or documentation such as receipts of wire transfers or copies of the U.S. company's
bank account. 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. For this
additional reason, the appeal will be dismissed.
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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 Dar 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. 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, the petitioner
has not met his burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.