dismissed L-1A Case: Information Technology

identifyingdatadeletedto
preventclearlyun~.'!ammted
invasionofP'lJ"?RIIprivaey
PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 06 079 50868 Office: CALIFORNIA SERVICE CENTER Date: MAR 2 1 z.ool
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.
~4-C/Robert P. Wiemann, Chief
r Administrative Appeals Office
www.uscis.gov
WAC 06 079 50868
Page 2
DISCUSSION: The Director, California 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 California limited liability company, claims to be engaged in the information technology
and media services business. The petitioner states that it is a subsidiary of Jonathan Hatchery System,
located in the Philippines. Accordingly, the United States entity petitioned Citizenship and Immigration
Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA) pursuant to
section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l01(a)(15)(L). The
petitioner was initially granted a one-year period of stay to open a new office and the petitioner now seeks
to extend the beneficiary's stay in order to continue to fill the position of CEO and president for a two­
year period.
The director denied the petition on June 20, 2006, concluding that the record contains insufficient
evidence to demonstrate: (1) that a qualifying relationship exists between the foreign company and the
United States entity; and, (2) that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that since the beneficiary is the only employee of the
U.S. entity and does not supervise a staff of professional, managerial of supervisory personnel who will
relieve the beneficiary from performing non-qualifying duties, the beneficiary will be primarily involved
in performing the day-to-day services essential to running a business. In addition, the director stated that
it appeared that the U.S. entity was a sole proprietorship and is not a qualifying organization.
On appeal, counsel asserts that the U.S. company is a limited liability company in the United States and is
not 'a sole proprietorship. Counsel states that the U.S. entity is not required to file Schedule K tax returns
and instead the beneficiary, as the sole member and owner of the company, may file the business tax
returns on his Form 1040. In addition, counsel states that the beneficiary is employed in a primarily
managerial and executive capacity since he is responsible for managing and developing the operations of
the entire U.S. company. In addition, counsel states that although the beneficiary is the sole employee of
the U.S. entity, he is primarily engaged in the managerial and executive duties. Counsel cites several
decisions to support his claims. Finally, counsel for the petitioner asserts that the beneficiary is a function
manager. In support of the appeal, counsel submits a brief and additional documentation.
To establish eligibility under section 101(a)(15)(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
thereofin 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.
WAC 06 079 50868
Page 3
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing
of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
prior education, training, and employment qualifies him/her to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
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 defmed 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)(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 ofthe financial status of the United States operation.
The first 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)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
The regulations at 8 c.P.R. § 214.2(l)(1)(ii)(G) state:
Qualifying organization means a United States or foreign firm, corporation, or other legal
entity which:
WAC 06 079 50868
Page 4
(1) Meets exactly one of the qualifying relationships specified in the
defmitions of a parent, branch, affiliate or subsidiary specified in
paragraph (l)(l)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not
required) as an employer in the United States and in at least one
other country directly or through a parent, branch, affiliate, or
subsidiary for the duration of the alien's stay in the United States as
an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the
Act.
The regulations at 8 C.F.R. § 2l4.2(l)(1)(ii)(H) state:
Doing business means the regular, systematic, and continuous provision of goods and/or
services by a qualifying organization and does not include the mere presence of an agent
or office of the qualifying organization in the United States and abroad.
The petitioner claims to be a subsidiary of the foreign employer, ystem. In support
of this claim, the petitioner submitted: (1) a membership certificate, number 1, indicating that the
beneficiary is the holder of 10,000 membership units of the U.S. entity; (2) Articles of Organization of the
U.S. entity identifying the beneficiary as the sole member; and, (3) Certificate of Registration Corporation
for the foreign company, authorizing the beneficiary to do business as System" in the
Philippines.
On February 21, 2006, the director requested that the petitioner submit copies of the foreign company's
most recent filing of tax documents, and copies of the U.S. company's most recently filed federal income
taxes.
In response, the petitioner submitted the beneficiary's annual income tax return, and a copy of the foreign
company's financial statement for the year ended December 31, 2005. In addition, the petitioner
submitted a letter from CPA, stating the U.s.· entity is a single member limited liability
company, and thus is not required to file the Schedule K tax return, and instead the U.S. entity reports its
income and expenses on a Schedule C.
The director denied the petition on June 20, 2006 on the ground that the petitioner submitted insufficient
evidence to establish an existing qualifying relationship between the foreign company and the United
States company. The director stated that according to the submitted evidence, the U.S. entity is a sole
proprietorship and is not a qualifying organization. The director stated, "if the petitioner is actually the
individual beneficiary doing business as a sole proprietorship, with no authorized branch office of the
foreign employer or separate legal entity in the United States, there is no U.S. entity to employ the
beneficiary and therefore no qualifying organization."
WAC 06 079 50868
PageS
On appeal, counsel for the petitioner asserts that the U.S. entity was organized in the State of California as
a limited liability company with the beneficiary as the sole member. Counsel asserts that the petitioner
submitted a letter by as discussed above, indicating that a single member limited
liability company is not required to file a Schedule K tax form, and instead may file the company's tax
returns on the single member's individual tax returns.
In review of the record, the AAO withdraws the director's conclusion that the U.S. entity is a sole
proprietorship and confirms that the documentation evidences that the U.S. entity is a limited liability
company. A corporation is a separate and distinct legal entity from its owners or stockholders. See
Matter ofM, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter ofAphrodite Investments Limited, 17 I&N
Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). Thus, the
U.S. entity may sponsor the beneficiary for L-IA classification.
In addition, in reviewing the record, the AAO withdraws the director's conclusion that the evidence is
insufficient to establish that a qualifYing relationship exists between the foreign company and the United
States entity. As discussed above, the petitioner submitted: a membership certificate, number 1,
indicating that the beneficiary is the holder of 10,000 membership units of the U.S. entity; the Articles of
Organization of the U.S. entity identifYing the beneficiary as the sole member; and, a Certificate of
Registration Corporation for the foreign company, authorizing the beneficiary to do business as "Jonathan
Hatchery System" in the Philippines. In addition, the petitioner submitted balance sheets of the foreign
company in the beneficiary's name, and the beneficiary's tax return indicating he is the owner of a
business. If one individual owns a majority interest in a petitioner and a foreign entity, and controls those
companies, then the companies will be deemed to be affiliates under the regulations. In the instant matter,
the petitioner provided sufficient evidence to establish that the beneficiary is the owner of both the foreign
company and the U.S. company, and thus the entities are affiliates and qualifYing organizations.
The second 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 assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department, subdivision, function, or component ofthe
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
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Page 6
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A ftrst-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. § 1l01(a)(44)(B), provides:
The term "executive capacity" means 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.
The nonimmigrant petition was ftled on January 11,2006. The Form 1-129 indicates that the beneficiary will
be employed in the position of CEO and president for the U.S. entity, which claimed to have one employee.
The petitioner submitted an annual report for 2005, which described the beneficiary's duties in the past year,
and the future goals of the U.S. entity as the following:
[The beneftciary] has provided the technological needs of some companies, from web­
development, network and server maintenance to computer controlled surveillance system;
so far we were able to maintain a solid business relationship for number companies.
We've installed services for two companies and are currently negotiating to develop
application which integrates their in-house operation with their web site for sales orders and
inventory control.
We've developed a web database application for a fertility broker to lessen the staff's
workload; egg donors and surrogate applicants can apply on line with all their pertinent
information. Clients can view this information online on a secured connection. We are
negotiating in installing an in-house server for better security.
* * *
Weare starting to venture to a new area: e-retailing. The sector's sales volume increased
30% from last year to $30 billion. Los Angles being a wholesale hub is a perfect place to
start e-retailing, this region supplies most parts of the country. We plan to develop e-stores
for various products that are available from our clients and come reputable wholesalers.
WAC 06 079 50868
Page 7
Looking ahead, we will broaden our operation into four distinct areas: Network and server
Maintenance, Web-software Development, E-retailing and Computer base Surveillance
System
In addition, the petitioner submitted a document entitled "Planned Organizational Chart for Year 2006." The
chart indicated the beneficiary as president. The chart also indicated six positions that are supervised by the
beneficiary but are currently vacant. The positions are: marketing person, computer technician, e-store
administrator, Philippine backend support,application programmer, and graphic designer. The chart
indicated that the proposed hiring schedule for these positions would start in February 2006 and end in June
2006.
On February 21, 21006, the director determined that the petitioner did not submit sufficient evidence to
process the petition and the director, in part, requested that the petitioner submit: (1) the organizational chart
of the U.S. company, including the names, job titles and a detailed job description for each employee; (2) a
more detailed description of the beneficiary's duties in the U.S., including the percentage of time spent on
each duty; and, (3) copies of the petitioner's California employer's quarterly wage reports, Form DE-6, for
the last four quarters for all employees.
In a response to the director's request, dated May 16, 2006, the petitioner submitted the current organizational
chart of the u.s. entity. The chart indicates that the beneficiary holds five positions within the company. The
chart indicates that the beneficiary is the president/CEO, the sales representative, the administrative
personnel, the computer technician, and the systems analyst website/database programmer.
In addition, the petitioner submitted a description of the beneficiary's duties in the United States as the
following:
The beneficiary is the CEO/President but is ClDTent [sicJ serving several roles in the
company:
1. His main role is the CEO/President of the company,
a. currently building the groundwork and foundation of the Company, by studying and
documenting every aspect of the Company's operation with his hands on approach,
and
b. Also by developing procedure and application for the company's operation.
c. He is developing a time standard computer repairs and cost analysis for common
computer and network problems.
d. Reviews market trends and customer needs and want and set the direction for the
company's products and services.
e. He manages the financial resources of the company to keep it in good credit
standing at all times.
f. He is building the image of quality, professionalism, dependability and reliability
for the company.
2. He is temporarily the Sales Representative for the Company, which solicits and follow­
ups [sicJcustomers and potential customers. As a Sales rep he is able to see a first hand
WAC 06 079 50868
Page 8
view of the market trends and direction and also helps him understand the specific needs
and wants of the customers.
3. He is developing a Customer Management Support application based on actual needs
and wants of customers. This will be used by the sales department in the near future
with a goal of 99.9% Customer satisfaction.
4. He is temporarily the Computer Technician and network administrator, goes on site to
client's offices to repair setup and configure workstations, servers, and networks, and
also provides training procedures. As a Tech, he can determine the common problem
encountered in a small business environment and their future IT needs.
5. He is the senior System Analyst, WebsitelDatabase Programmer, design system
workflows and develops programming scripts. He develops application for the
company and the clients and studying [sic] emerging technology that can be useful.
6. He temporarily [sic] the Administrative manager for the company whose main job is to
record expenses, create checks and track bank records for the company pays [sic].
The petitioner also submitted a letter from stating that the U.S entity did not file
Form DE-6, Quarterly Wage Report, since the company did not hire any employees. The letter states that the
beneficiary, as the sole owner, filed his annual self-employment taxes as part of his 1040 filing. The letter
also states that the U.S. entity is a single member limited liability company and it is not required to file the
Schedule K tax return but instead the U.S. entity reports its income and expenses on a Schedule C.
The director denied the petition on June 20, 2006 on the 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 noted that the beneficiary, as the sole employee of the U.s. entity, will be
performing all aspects of the day-to-day operations of the business. The director also noted that the
petitioner did not submit sufficient evidence to demonstrate that the beneficiary will be a function
manager, or will primarily perform executive duties for the U.S. entity.
The petitioner filed an appeal on July 19, 2006. On appeal, counsel for the petitioner asserts that the
beneficiary is employed in a primarily managerial and executive capacity since he is responsible for
managing and developing the operations of the entire U.S. company. In addition, counsel states that
although the beneficiary is the sole employee of the U.S. entity, he is primarily engaged in the managerial
and executive duties. Counsel also cites Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga
1988), National Hand Tool Corp. v. Pasquarell, 889 F.2d. 1472 n. 5 (9th Cir. 1989), and an unpublished
decision in support of the assertion that the number of staff is not a basis for denial where the beneficiary
does not supervise a large number of employees or large enterprises. Finally, counsel states that the
beneficiary is a function manager.
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 executive capacity. When examining the
executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of
WAC 06 079 50868
Page 9
the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an
executive or managerial capacity. Id.
The 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
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 and
executive duties constitute the majority of the beneficiary's duties, 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 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 Intn 'I., 19 I&N Dec. 593, 604 (Comm. 1988).
Here, while the beneficiary evidently exercises some discretion over the day-to-day operations of the
business, the petitioner's description of his proposed duties suggest that the beneficiary's actual duties
include primarily non-managerial and non-executive duties.
The beneficiary's proposed job description includes vague duties such as the beneficiary is "currently
building the groundwork and foundation of the Company, by studying and documenting every aspect of
the Company's operation with his hands on approach, and also by developing procedure and application
for the company's operation"; and "building the image of quality, professionalism, dependability and
reliability for the company." 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).
In addition, the job duties required of the beneficiary include non-qualifying duties such as the beneficiary
will be responsible for" developing a time standard computer repairs and cost analysis for common computer
and network problems"; "reviews market trends and customer needs and want and set the direction for the
company's products and services"; "manages the financial resources of the company to keep it in good credit
standing at all times"; "solicits and follow-ups [sic) customers and potential customers"; "goes on site to
client's offices to repair setup and configure workstations, servers, and networks, and also provides training
procedures"; "develops application for the company and the clients and studying emerging technology that
can be useful; and "record expenses, create checks and track bank records for the company pays." As the
only employee of the company, the beneficiary is responsible for performing all of the non-qualifying tasks
involving finance and development operations, technical functions, administrative and operational tasks and
clerical work. Although the petitioner failed to provide the percentage of time spent on each duty as
requested by the director, since the beneficiary is the only employee of the U.S. entity it appears that he
WAC 06 079 50868
Page 10
would need to spend the majority of his time performing non-managerial technical, administrative or
operational duties in order to provide the services of the business. Again, 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 Int 'I., 19 I&N Dec. at 604.
As noted above, the petitioner failed to submit the percentage of time the beneficiary will spend on each
duty, 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). On appeal, counsel for the
petitioner asserts that the beneficiary primarily performs executive and managerial duties, however, the
petitioner did not submit any documentation to confirm this assertion. 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 ofRamirez-Sanchez, 17 I&N
Dec. 503, 506 (BIA 1980).
As noted above, according to the petitioner's statement on Form 1-129, the U.S. company has only hired the
beneficiary in order to fill the positions of CEO/president, sales representative, administrative manager,
computer technician, and systems analyst website/database programmer. ,Counsel correctly observes that a
company's size alone may not be the determining factor in denying a visa to a multinational manager or
executive. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used
as a 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 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(l)(l4)(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. 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 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 ofa company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
At the time of filing, it appears that the U.S. company was providing information technology and media
services to companies. As discussed, the submitted job description indicates that the beneficiary is
responsible for performing primarily non-managerial and executive duties. Thus, if the beneficiary is the
only employee providing the services offered by the U.S. entity by providing the technical and consulting
WAC 06 079 50868
Page 11
services to its clients, it is reasonable to assume that the beneficiary will be performing the day-to-day
operations and directly providing the services of the business rather than directing such activities through
subordinate employees. Again, an employee who "primarily" performs the tasks necessary to produce a
product or provide services is not considered to be "primarily" employed in a managerial or executive
capacity. See sections lOl(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter ofSoffici, 22 I & N Dec. at 165.
Based on the evidence submitted, it appears that the beneficiary will be performing all or many of the
various operational tasks inherent in operating the business on a daily basis, such as acquiring clients,
negotiating contracts, budgeting, and providing the consulting services to its clients. 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. It does not appear that the reasonable
needs of the petitioning company might plausibly be met by the services of the beneficiary alone.
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in
the context of reviewing the claimed managerial or executive duties. The petitioner 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.
Furthermore, on appeal, counsel asserts that the position offered to the beneficiary is in an executive
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated position
within a complex organizational hierarchy, including major components or functions of the organization,
and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. §
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and
"establish the goals and policies" of that organization. Inherent to the definition, the organization must
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the
enterprise. An individual will not be deemed an executive under the statute simply because they have an
executive title or because they "direct" the enterprise as the owner or sole managerial employee. The
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id. 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 ofChurch Scientology International, 19 I&N Dec. at 604. As the beneficiary is
the only employee of the U.S. entity, the U.S. company has not established a complex organizational
structure which would elevate the beneficiary to an executive-level position. In the instant matter, the
petitioner has not established evidence that the beneficiary is employed in an executive capacity with the
U.S. entity.
Finally, the AAO acknowledges counsel's contention that the service further erred in not identifying the
position as an essential function within the petitioner's organization. The term "function manager"
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but
instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 110l(a)(44)(A)(ii). The term "essential function" is not defined
by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the
WAC 06 079 50868
Page 12
petitioner must furnish a written job offer that clearly describes the duties to be performed in managing
the essential function, i.e. identify the function with specificity, articulate the essential nature of the
function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential
function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary manages the function rather than performs the duties related
to the function. An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v.
IN.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. at 604. In this matter, the petitioner has not provided evidence that the
beneficiary manages an essential function.
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 operations duties, the nature of the petitioner's business, and any
other factors that wilI contribute to a complete understanding of a beneficiary's actual duties and role in a
business. In the case of a function manager, where no subordinates are directly supervised, these other
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the
petitioner's operations, the indirect supervision of employees within the scope of the function managed,
and the value of the budgets, products, or services that the beneficiary manages.
As discussed above, the petitioner has not identified any 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 a "function manager"
as contemplated by the governing statute and regulations. As discussed above, the petitioner has not
established that the beneficiary's duties are primarily managerial in nature, and thus he cannot be
considered a "function manager."
Other than stating that the proposed position will be responsible for managing an unidentified essential
function, counsel provides no explanation or evidence in support of his claim that the beneficiary would
qualify as a function manager pursuant to section 101(a)(44)(A)(ii) of the Act. The unsupported
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez,
17 I&N Dec. 503 (BIA 1980).
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 performing operational and administrative tasks. It is
the petitioner's obligation to establish through independent documentary evidence that the day-to-day
non-managerial and non-executive tasks of the petitioning entity are performed by someone other than the
beneficiary, although, as correctly noted by counsel, theseemployees need not be professionals. Here, the
petitioner has not met this burden.
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Furthermore, counsel for the petitioner discusses an unpublished decision where the AAO held that a
small staff does not justify a denial where the beneficiary holds wide decision-making discretion.
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met
the requirements of serving in a managerial and executive capacity for L-l classification even though he
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant
petition are analogous to those in the unpublished decision. 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.
Counsel cites Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga 1988), and National Hand
Tool Corp. v. Pasquarell, 889 F.2d. 1472 n. 5 (9th Cir. 1989), to stand for the proposition that the small
size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily
managerial or executive capacity. Counsel has furnished no evidence to establish that the facts of the
instant petition are analogous to those in Mars Jewelers, Inc. v. INS or National Hand Tool Corp. v.
Pasquarello It is noted that both of the cases cited by counsel relate to immigrant visa petitions, and not
the extension of a "new office" nonimmigrant visa. As the new office extension regulations call for a
review of the petitioner's business activities and staffing after one year, the cases cited by counsel are
distinguishable based on the applicable regulations. See 8. C.F.R. § 214.2(l)(14)(ii). As counsel has not
discussed the facts ofthe cited matters, they will not be considered in this proceeding.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. For this reason,
the appeal will be dismissed.
Although counsel for the petitioner argues on appeal that the petitioner's rights to procedural due process
were violated, they have not shown that any violation of the regulations resulted in "substantial prejudice"
to them. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make
an initial showing of substantial prejudice" to prevail on a due process challenge). The respondents have
fallen far short of meeting this standard. A review of the record and the adverse decision indicates that
the director properly applied the statute and regulations to the petitioner's case. The petitioner's primary
complaint is that the ~irector denied the petition. As previously discussed, the petitioner has not met its
burden of proof and the denial was the proper result under the regulation. Accordingly, the petitioner's
claim is without merit.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
See Matter ofBrantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of
evidence that the beneficiary is fully qualified for the benefit sought. Matter ofMartinez, 21 I&N Dec.
1035, 1036 (BIA 1997); Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989); Matter of Soo Hoo, 11
I&N Dec. 151 (BIA 1965).
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of
each individual case. Matter ofE-M-, 20I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence,
Matter ofE-M- also stated that "[t]ruth is to be determined not by the quantity of evidence alone but by its
quality." Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard,
WAC 06 079 50868
Page 14
the director must examine each piece of evidence for relevance, probative value, and credibility, both
individually and within the context of the totality of the evidence, to determine whether the fact to be
proven is probably true.
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and
credible evidence that leads the director to believe that the claim is "probably true" or "more likely than
not," the applicant or petitioner has satisfied the standard of proof. See Us. v. Cardozo-Fonseca, 480
U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something
occurring). lfthe director can articulate a material doubt, it is appropriate for the director to either request
additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny
the application or petition. Based on the foregoing discussion, the submitted evidence is not relevant,
probative, and credible.
Counsel for the petitioner noted that CIS approved a petition that had been previously filed on behalf of
the beneficiary for the same position. The prior approval does not preclude CIS from denying an
extension of the original visa based on reassessment ofpetitioner's qualifications. Texas A&M Univ. v.
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). Further, the petitioner's prior petition
to which counsel refers was a petition to allow the beneficiary to enter the United States to open a new
office. Thus, that petition was governed by the regulations pertaining to new offices. See 8 C.F.R. §
214.2(1)(3)(v). The present petition is a request for an extension of the beneficiary's status after
completing a one-year period to open a new office. Thus, the present petition is governed by a different
set of regulations pertaining specifically to new office extensions. See 8 C.F.R. § 214.2(L)(14)(ii). As
different law and evidentiary requirements apply to the present petition, the director has a duty to
carefully review the petitioner's representations and documentation to determine if eligibility has been
established. Contrary to counsel's suggestion, the fact that a prior petition was approved on behalf of the
beneficiary does not serve as prima facie evidence that eligibility has been established in the present
proceeding.
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated,
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology
International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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 appeal will be dismissed.
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Page 15
ORDER: The appeal is dismissed.