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U.S.Department of 110meland Security
20 Mass Ave. N.W., Room 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 04 190 50889 Office: TEXAS SERVICE CENTER Date: ,IJN II .,
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)(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.
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1Administrative Appeals Office
IV
www.uscis.gov
SRC 04 19050889
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-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of
Florida that is engaged in insurance services. The petitioner claims that it is the subsidiary of INASEG
LTDA., located in Bogota, Colombia. 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 director's
decision is based on misperceptions resulting from the failure of the petitioner's previous counsel to provide
adequate supporting documentation. In support of this assertion, counsel submits additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within 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 (1)(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 04 190 50889
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined III
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 will 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 04 190 50889
Page 4
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.
In an unsigned letter dated June 28, 2004 accompanying the Form 1-129, Petition for a Nonimmigrant
Worker, the petitioner described the beneficiary's job duties as follows:
[The beneficiary] plans and coordinates the policies, goals, and ... supervises the company's
production and research activities, develops pricing strategy for the company which results in
competitiveness within the insurance market share [sic].
* * *
He directs and oversees all operations and projects, and makes all business decisions. As the
General Manager, he is involved in doing continuous market research to determine how best
to introduce and expand the u.S. company. Under this position he is also responsible for the
promotional department of the company and the continuing development of marketing
strategies and plans.
In the same letter, the petitioner indicates that it has two other employees, a sales director/representative and
personnel officer and a sales representative and office secretary.
On July 15, 2004, the director issued a request for further evidence (RFE). Specifically, the director
requested (1) an explanation of the duties and educational background of the other employees on the U.S.
company's staff; (2) an organizational chart for the U.S. company; (3) evidence of how the beneficiary will
not engage in the day-to-day operations of the business and will primarily be engaged in managerial or
executive duties and managing other managers and professionals; (4) copies of the U.S. entity's state quarterly
tax returns for the previous two quarters; and (5) Form 940EZ, Employer's Annual Federal Unemployment
Tax Return.
In response, the petitioner submitted an organizational chart showing that it has four employees in total - the
beneficiary as general manager and, directly below him, a life insurance representative, a customer
SRC 04 190 50889
Page 5
representative, and a sales associate. The life insurance representative is the individual who was previously
described in the initial petition as the sales director/representative and personnel officer; the other two
employees under the beneficiary were not previously named. The petitioner submitted resumes and job
descriptions with breakdowns of the percentage of time spent per duty for all four employees. The
beneficiary's duties are broken down in the new job description as follow:
Keep track of cash flow: 600/0
* Keep balanced sheets [sic] of cash in and cash out.
* Pay bills.
* Maintain statistics of money flow.
* Do financial planning for the agency.
* Review purchase orders.
In charge of legal department: 100/0
* Make sure that all legal requirements are kept. Licenses,
continuo[us] education, taxes, permits, etc.
Find qualified staff: 10%
* Interview prospects.
* Hire and set up payroll through Crum (staff leasing).
* Appoint new staff with Allstate.
Marketing: 100/0
* Create marketing strategies.
* Negotiate with vendors price for advertisement.
* Creat[e] ads.
Overview: 100/0
*Overview that the agency is producing
[and] that it is viable and solvent.
The petitioner also submitted its federal and state employer's quarterly tax reports for the first and second
quarters of 2004 and its payroll record for the months of July and August 2004. The payroll record lists only
two employees - the beneficiary and the person described in the initial petition as the sales director/
representative and personnel officer.
On November 9, 2004, the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity. The director noted that, although the petitioner declared in the initial petition that it has four
employees, payroll records show that it has only two. The director found the record does not establish that
the beneficiary will be supervising professional, managerial, or supervisory employees who will relieve the
beneficiary from performing non-qualifying duties, and that given the current structure of the business, the
beneficiary will have to engage primarily in the day-to-day operations of the company.
SRC 04 190 50889
Page 6
The petitioner is represented by new counsel on appeal. Counsel asserts that the director misperceived the
facts because previous counsel failed to submit sufficient evidence. Counsel claims that the reason the U.S.
entity's payroll only shows two employees, rather than four as disclosed in the response to the RFE, is because
the U.S. entity had acquired another insurance company shortly before the petition was filed, and the
employees of the acquired company continued to be paid through that company's payroll arrangement.
Counsel further indicates that in the interim between the filing of the initial petition and the petitioner's
response to the director's RFE, the company added two new employees and lost two of the employees
previously listed in the petition. The two new employees are also paid through the staffing service for the
recently-acquired company even though they are employees of the U.S. entity. Counsel asserts that the
petitioner's previous counsel had failed to explain these details earlier. Counsel further asserts that the U.S.
company's essential daily operations consist of the sale and service of insurance policies, and since the
beneficiary is not a licensed insurance agent, he cannot be carrying out the company's daily operations.
Rather, counsel maintains the beneficiary is there to manage the company and to supervise and control the
work of the other employees, all of whom are licensed insurance professionals. Counsel also claims that the
beneficiary's subordinates do in fact perform in some managerial capacity. Additional documentation is
submitted on appeal in support of the above assertions.
Upon review, the record is not persuasive in demonstrating that the beneficiary would be employed in a
primarily managerial or executive capacity. When examining the executive or managerial capacity of the
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R.
§ 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 petitioner must specifically state whether the beneficiary is primarily employed in a
managerial or executive capacity.
The petitioner and its counsel have claimed in the petition and on appeal that the beneficiary functions in a
primarily managerial capacity within the U.S. company. Counsel asserts on appeal that the beneficiary cannot
be considered to be engaging in the day-to-day operations of the company because he does not have a license
to sell insurance. However, in response to the director's RFE, the petitioner disclosed that the beneficiary
spends 600/0 of his time on routine tasks relating to the company's finance, such as paying bills, keeping track
of cash flow, and reviewing purchase orders; 10% on maintaining the company's compliance with legal
requirements; and 10% on marketing tasks such as creating advertisements and negotiating prices with
vendors. The job descriptions for the company's other employees show that they are involved either in
customer service or the sales and service of insurance policies and do not perform any of the routine finance,
legal compliance, and marketing tasks attributed to the beneficiary. As such, it must be concluded that the
beneficiary performs the described tasks himself rather than supervises other employees who perform them.
Even if the beneficiary does not sell insurance policies, the tasks that he performs in finance, legal
compliance, and marketing are also tasks that are necessary to provide the company's service or product. As
such, these tasks will not be considered managerial or executive in nature. Based on his job description, it
would appear that the beneficiary spends up to 80% of his time on these non-qualifying tasks. 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
SRC 04 190 50889
Page 7
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).
Moreover, as the director noted, there is a discrepancy in the record regarding the number of employees on
the U.S. entity's staff. The petitioner's June 28, 2004 letter states that the company has three employees - the
beneficiary as general manager, a sales director/representative and personnel officer, and a sales
representative/office secretary. The response to the RFE, submitted about three months later, indicates that
the company has four employees. The beneficiary remains the general manager, but the sales
director/representative and personnel officer has become a sales associate; the sales representative/office
secretary no longer appears to be on the staff; and a life insurance representative and a customer
representative have been added. In addition, the petitioner submitted the company's payroll record, which
lists only the beneficiary and the person identified as the sales associate. It is incumbent upon the petitioner
to resolve any inconsistencies in the record by independent objective evidence. The petitioner offered no
explanation for these changes in the company's staffing prior to the issuance of the director's decision. 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 AAO acknowledges that counsel does clarify on appeal that the U.S. company claims to have four
employees, as disclosed in the petitioner's response to the RFE, and does explain why there are only two listed
on the company's payroll. However, counsel also confirms that two of the beneficiary's subordinate
employees were hired in the interim between the filing of the petition and the petitioner's response to the RFE,
and therefore were not employed by the U.S. company at the time the petition was filed. The petitioner must
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Even assuming that the staff of the company consists of four employees, the record still does not demonstrate
that the beneficiary supervises professional, managerial or supervisory subordinate employees, as required by
section 101(a)(44)(A)(ii) of the Act. According to the organizational chart the petitioner submitted in
response to the RFE, the beneficiary directly supervises the other three employees of the company. Counsel
claims on appeal that at least two of the beneficiary's subordinates "have some managerial capacity
themselves" - the sales associate, counsel claims, "hold[s] a license to act as a general managing agent of a
Florida-based agency", and the life insurance representative "has authority to direct any customer service
activity." However, based on the job descriptions the petitioner has provided, the duties of these employees
appear to involve direct sales and service of insurance policies. There is no indication that they, or the
customer representative, carry out any managerial or supervisory function, nor is there any other staff for
them to manage or supervise. As such, the record does not show that the beneficiary supervises managerial or
supervisory subordinate employees.
The petitioner also has not established that the beneficiary's subordinates are professionals. Counsel claims
on appeal that all three of the beneficiary's subordinate employees are "insurance industry professionals"
based on their licenses from the Florida Department of Insurance or Financial Services. In evaluating
whether the beneficiary manages professional employees, however, the AAO must evaluate whether the
SRC 04 190 50889
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subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). In this instance, the petitioner submitted resumes for the life
insurance representative and the customer representative, which show that both employees have graduated
from high school and each has completed an insurance or customer service course of unstated duration. There
was no evidence submitted relating to the sales associate's educational level, although certificates for
completion of various insurance courses were included. On appeal, the petitioner submitted an informational
printout from the Florida Department of Financial Services relating to the application process for an insurance
license; however, while this document mentions the requirement of an examination, it sheds no light on the
level of education required in order to pass the examination, or to acquire a license. Based on the information
submitted, the AAO cannot determine whether the work of these individuals, as insurance agents, require the
level of education that might be considered equivalent to "at least a baccalaureate level." Thus, without
further information, the record is insufficient to demonstrate that the beneficiary's subordinate employees are
professionals.
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has not
established that the beneficiary will be employed in a primarily managerial or executive capacity, as required
by 8 C.F.R. § 214.2(1)(3).
Beyond the director's decision, the petitioner has not provided sufficient evidence to establish that a
qualifying relationship continues to exist between the U.S. and foreign entities. 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 United States and foreign entities for purposes of this visa classification.
Matter of Church Scientology International, 19 I&N Dec. at 597; see also Matter of Siemens Medical
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the
context of this visa petition, 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 of Church Scientology
International, 19 I&N Dec. at 595.
On the L Supplement to Form 1-129, the petitioner indicated that the U.S. entity is 51% owned by the foreign
entity. In support of this claim, the petitioner submits a copy of share certificate number 1 of the U.S. entity,
dated May 23, 2003, which indicates that the foreign entity owns 3,825 shares of the U.S. entity. The
petitioner submitted no other evidence of ownership interest in the U.S. entity.' As general evidence of a
petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine
! The AAO notes that the U.S. entity's 2003 federal tax return indicates that wns 49% of
the company. However, there is no other documentation on the record to substantiate this claim.
SRC 04 190 50889
Page 9
whether a stockholder maintains ownership and control of a corporate entity. 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. 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, Citizenship and Immigration Services is unable to determine the elements of ownership and
control and therefore cannot conclude that a qualifying relationship between the U.S. and foreign entities
continues to exist as claimed. 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 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. 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.