dismissed L-1A Case: Interior Design

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
PUBUCCOpy
File: EAC 07 044 52835 Office: VERMONT SERVICE CENTER Date: cx:r 02 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the
office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, ef
VAdministrativeAppeals Office
www.uscis.gov
EAC 07 044 52835
Page 2
DISCUSSION: The Director, Vennont 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 filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(15)(L). The petitioner, a Florida corporation, states that it intends to operate an interior
design, remodeling and decorating business. It claims to be a subsidiary of Favser Laboratorios Limitada,
located in Colombia. The petitioner seeks to employ the beneficiary as president of its new office in the
United States for a three-year period.1
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be
employed by the U.S. entity in a primarily managerial or executive capacity within one year.
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 evidence
previously submitted fulfilled all legal requirements for the requested visa classification. Counsel contends
that the beneficiary's functions will be purely executive in nature, with daily tasks left to the company's
employees. Counsel submits a briefin support of the appeal.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 Fonn 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 perfonned.
(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 perfonn the intended
1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
EAC 07 044 52835
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(1)(3)(v) also provides 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 involves 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) ofthis 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 sole issue addressed by the director is whether, within one year, the petitioner will employ the beneficiary
in a primarily managerial or executive capacity, as required by 8 C.F.R. § 214.2(l)(3)(v)(C).
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
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(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), 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.
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first 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 low level 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 that first
year. In an accommodation that is more lenient than the strict language of the statute, the "new office"
regulations allow a newly established petitioner one year to develop to a point that it can support the
employment of an alien in a primarily managerial or executive position.
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office,"
it must show that it is prepared to commence doing business immediately upon approval so that it will support
a manager or executive within the one-year timeframe. 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. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time of filing the petition to open a
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to
house the new office and that it will support the beneficiary in a managerial or executive position within one
year of approval. Specifically, the petitioner must describe the nature of its business, its proposed
organizational structure and financial goals, and submit evidence to show that it has the financial ability to
remunerate the beneficiary and commence doing business in ~he United States. [d.
The nonimniigrant petition was filed on December 5, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would be employed as president of the petitioner's interior design, remodeling and decorating
business, which intends to hire five employees. In a letter dated November 20, 2006, counsel for the petitioner
indicated that the position "involves the management of the business enterprises operations" including, but not
limited, to, the following duties:
• The supervision of the employees and future employees employed with the company;
• Training of Employees (hiring and firing of employees);
EAC 07 044 52835
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• Managing the Sales and finances;
• Planning, developing and implementing company strategy;
• Planning the future expansion of the business and the possibility of franchising the said
business;
• Developing and implementing policies and new procedures for sales company;
• Determining mark-up percentages necessary to insure profit, based on estimated budget,
profit goals and average rate of client acquisition;
• Developing policies and procedures for procurement of services;
• Oversee the negotiating of contracts with clients;
• Authorizing purchase of contract services based on estimates;
• Formulating pricing policies for sales;
• Review statements, invoices, bills of lading and insurance certificates;
• Supervising the contact with the different purchasers;
• Coordinate and develop the public relations policies design to improve the business's
image and relations with customers, the community and the public;
• Evaluate market for new profitable opportunities in order to attain established policies
and objectives of the company;
• Plan and implementing new operating procedures to improve efficiency and reduce
costs;
• Review activity reports and financial statements to determine progress and status in
attaining objectives and revises objectives and plans in accordance with current
conditions;
• Direct and coordinate formulation of financial programs to provide funding of new or
continuing operations to maximize returns on investments and increase productivity.
Counsel further stated that the position is "at the executive level since he formulates policy and has the
ultimate discretionary authority to make necessary changes in the structure of the business." Counsel noted
that the beneficiary's functions are "purely executive" and stated that he "leaves the daily tasks to the
company employees."
The petitioner's supporting evidence included a letter from Wachovia Bank confirming that the U.S. company
had $13,700 in its checking account as of November 22, 2006. The petitioner did not provide evidence
related to the proposed nature of the office or describe the scope of the entity, its organizational structure, and
its financial goals, as required by 8 C.F.R. § 214.2(l)(3)(v)(C)(l).
On December 11, 2006, the director issued a request for additional evidence to establish how the U.S.
company will require the beneficiary's services in a primarily managerial or executive capacity within one
year. Specifically, the director instructed the petitioner to submit an organizational chart which clearly
specifies the beneficiary's proposed subordinates and to provide complete position descriptions for the
beneficiary's proposed subordinates, including a breakdown of the number of hours to be devoted to each
employee's job duties on a weekly basis.
In a response dated January 12, 2007, counsel for the petitioner stated that the petitioner's initial staffing
requirements would include the beneficiary, an engineering-construction manager, a sales supervisor, an
interior designer, an accountant, and a secretary, as well as independently contracted services in the areas of
legal, sales and construction. Counsel described the beneficiary's proposed role as follows:
EAC 07 044 52835
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President: Supported by the personnel of each and every area, develops the management and
control of the whole company; he plans, develops and implements the corporate strategy for
marketing; performs the architectonic design for the construction, remodeling and decoration;
supervises the financial, sales and administrative areas; plans the business expansion; drafts
the corporation budget preparation of the corporation budget; develops the price policy to
guarantee the business profits and proceedings of services; approves and supervises the
contracts with clients and providers of raw material; supervises the financial statements and
billing system; maintains pennanent communication with the providers of construction
materials; defines the contracting personnel policies; coordinates and develops the public
relation policies to generate an appropriate image of the company before the clients, the
providers and the community in general; evaluates the market seeking for opportunities to
fulfill the objectives and goals of the corporate budget; directs and coordinates financial
programs to expand the operations, maximize the profits and increase the productivity; and
reviews the information and reports of the corporate activity against the corporate budget.
The petitioner indicated that the construction manager would be responsible for: structure calculations;
development, execution and supervision of civil construction works; materials logistics; coordination with
providers; employee supervision; evaluation of duration and costs of work; coordinating contract fees; and
making recommendations related to financial and material resources.
The petitioner stated that the proposed sales supervisor position would control and supervise teams of sales
agents working on commission, collaborate with the president in the drafting of marketing policies, budget
development, and in "the diffusion of the services offered by the company." The proposed interior designer
position was describing as performing "the interior architectonic design for construction, remodeling and
decoration." Specific duties attributed to this position include budget preparation, acquiring and coordinating
materials requested by clients, and coordinating fulfillment of projects within budget guidelines. The
petitioner also provided brief position descriptions for the proposed accountant and secretary positions. In
addition, the petitioner included position descriptions for a "decoration manager," "works foreman," and
salespersons, although these positions are not included in the petitioner's outline of its "administrative
structure" for the first three years of operation.
The petitioner submitted a brief business plan outlining the company's financial projections and anticipated
organizational structure for the first four years of operation. The petitioner also submitted evidence that it
placed a recruitment advertisement for the positions of construction manager and interior designer as of
January 2007.
The director denied the petition on January 24,2007, concluding that the petitioner had failed to establish that
the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity within
one year. The director detennined that the petitioner had not established the need for professionals or
managers to fill the proposed positions subordinate to the beneficiary's position and therefore concluded that
the beneficiary would not qualify as a manager on the basis of his supervisory duties. The director also found
insufficient evidence that the company would require the beneficiary to perform primarily managerial or
executive duties as of the end of the first year of operations.
On appeal, counsel for the petitioner asserts that all requirements for the requested nonimmigrant visa
classification have been established. Counsel notes that the statute bars the number of persons supervised as a
EAC 07 044 52835
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sole basis for denying L-IA visa classification. Counsel recites portions of the statute and regulations and
concludes that the petitioner believes that "the officer is not convinced of his final detennination of our
application stated on his final decision."
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be
employed by the United States entity in a managerial or executive capacity within one year.
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. Beyond the required description of the job duties, uscrs
reviews the totality of the record when examining the claimed managerial or executive capacity of a
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other
employees to relieve the beneficiary· from performing operational duties at the end of the first year of
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete
understanding of a beneficiary's actual duties and role in a business. The petitioner's 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. See generally, 8 C.F.R. § 214ol(l)(3)(v).
In the instant matter, the petitioner provided a lengthy, but vague, description of the beneficiary's proposed
duties that fails to identify with any specificity what he would do on a day-to-day basis as president of the
petitioning company. For example, statements indicating that the beneficiary will be responsible for
"planning, developing, and implementing company strategy," "planning the future expansion of the business,"
"developing and implementing policies and new procedures," "developing policies and procedures for
procurement of services," "formulating pricing policies," coordinating and developing "public relations
policies," "planning and implementing new operating procedures, and "directing and coordinating formulation
of financial programs," are non-specific, repetitive and essentially paraphrase portions of the statutory
definitions for managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act. Reciting
the beneficiaryis vaguejob 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 proposed 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 Fold 41 (2d. Cir. 1990).
Other responsibilities included in the petitioner's initial description of the beneficiary's position have not been
described in sufficient detail to establish the executive or managerial nature of the beneficiary's assigned
duties. For example, the petitioner stated that the beneficiary's role would involve "managing the sales and
finances," overseeing the "negotiating of contracts with clients," "supervising the contact with different
purchasers," evaluating the market, and "reviewing statements, invoices, bills of lading and insurance
certificates." The petitioner did not identify the beneficiary's specific role with respect to sales and financial
matters, indicate the types of contract negotiations in which he would be involved, identify any "purchasers"
to be employed by the company, or explain how the beneficiary would "evaluate the market." Furthermore, it
does not appear that the petitioner would be involved in any import activities, which raises questions as to
why the beneficiary would be required to review bills of lading. Specifics are clearly an important indication
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of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the
definitions would simply be a matter of reiterating the regul~tions. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. at 1l08.
Further, the petitioner provided a somewhat different position description in response to the director's request
for evidence which included new duties, some of which have not been shown to be managerial or executive in
nature. For example, the petitioner stated that the beneficiary will perform the "architectonic design for the
construction, remodeling, and decoration." If the beneficiary will actually be designing construction and
remodeling projects, he will be directly providing the services of the company and these duties will not be
considered managerial or executive in nature. An employee who "primarily" performs the tasks necessary to
produce a product or to provide services is not considered to be "primarily" employed in a managerial or
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593,
604 (Comm. 1988). The beneficiary's responsibilities for supervising the petitioner's billing system and
communicating with construction materials providers have also not been described with sufficient specificity
and have not been shown to be at the managerial or executive level.
Overall, the petitioner has identified approximately two dozen responsibilities to be performed by the
beneficiary during a forty-hour workweek, but has failed to indicate how the beneficiary's time would be
allocated, such that it would be feasible to determine what his primary duties would be. Based on the current
record, the AAO is unable to determine whether the claimed managerial and executive duties would
realistically constitute the majority of the beneficiary's duties, or whether the beneficiary would perform
primarily administrative or operational tasks. The petitioner's description of the beneficiary's job duties does
not establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is
actually non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).
As noted above, the totality of the record must be considered in analyzing whether the proposed duties are
plausible considering the petitioner's anticipated staffing levels and stage of development within a one-year
period. In this case, the AAO's review of this issue is restricted by the petitioner's submission of minimal
evidence or information regarding the proposed nature of the office and the anticipated scope of the entity, as
required by 8 C.F.R. § 214.2(1)(3)(v)(2). 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 of Ho, 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
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.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.
Based on the petitioner's representations, the U.S. company intends to operate an interior design, remodeling
and decoration business. The company has a lease agreement for "commercial business," and had $13,700 in
the bank as of the date of filing. There is no evidence that the petitioner has acquired any licenses required to
operate a construction and remodeling business or that it has purchased any equipment. The petitioner
indicates that it requires "no more than $15,000" to cover its start-up costs, yet provides no explanation as to
how it derived this figure. The petitioner has provided four years of financial projections, but has not
provided a business or marketing plan that would allow the AAO to detennine whether such projections are
realistic. Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998).
The AAO acknowledges the petitioner's claim that it intends to hire a construction manager, interior designer,
sales supervisor, interior designer, accountant, and secretary within the first year of operations. However, the
minimal evidence submitted regarding the. petitioner's business plans prohibits a finding that the petitioner
would hire all of these employees within one year, that these positions would require the services of
professionals, or that any of the beneficiary's subordinates would be employed as supervisors or managers
within one year. Although the petitioner implies that the services of the company will be primarily performed
by subcontracted employees, the petitioner projects that it will be paying $1,690 per month to subcontractors
at the end of the first year of operations, an amount that would be insufficient to compensate two full-time
employees earning minimum wage. The AAO questions whether such a small staff of contractors could
plausibly provide the petitioner's proposed services. The petitioner has identified job duties for the positions
of decoration manager, works foreman and salesperson, but does not list these positions in its projected hiring
plans for the first three years of operation. The petitioner indicates that it will hire an accountant who will
oversee "accounting assistants," but does not indicate that it intends to hire such assistants. 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 ofRo, 19 I&N Dec. 582, 591-92 (BlA 1988).
The AAO does not doubt that the beneficiary will exercise supervisory authority over the petitioner's start-up
operations. However, the definitions of executive and managerial capacity have two separate requirements.
First, the petitioner must show that the beneficiary performs the high-level responsibilities that are specified
in the definitions. Second, the petitioner must show that the beneficiary primarily performs these specified
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion World,
Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Overall, the vague job
description provided for the beneficiary, the petitioner's statements that the beneficiary will be responsible for
design activities, and the deficiencies and inconsistencies discussed with respect to the petitioner's business
and hiring plans, prohibit the AAO from concluding that the beneficiary will perform primarily managerial or
executive duties within one year. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish that the
petitioner has secured sufficient physical premises to house the new office, as required by 8 C.F.R. §
214.2(l)(3)(v)(A). The petitioner has not described its anticipated space requirements for its proposed
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remodeling, interior design and decorating business and the lease agreement submitted does not identify the
size or intended use of the leased property, other than stating that the premises are for "commercial use."
Moreover the etitioner rovided a lease agreement for physical premises located at
the titioner stated on Form 1-129 that the address at which the
e petitioner did not provide a
commercial lease agreement for this address. Going on record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 1&N at
165. For this additional reason, the petition cannot be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by the
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied and the appeal dismissed 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.
ORDER: The appeal is disnussed.