dismissed L-1A Case: International Trade

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PUBLICCOpy
U.S.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 04 089 52485 Office: CALIFORNIA SERVICE CENTER Date: NOV 01 2001
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)
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.
~.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.usels.gev
WAC 04 089 52485
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its manager as an L­
lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly engaged in international trade.' The beneficiary was initially
granted a one-year period of stay to open or be employed at 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 will 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 to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of a manager. In support, counsel submits a brief.
To establish eligibility for the L-I 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 Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(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.
lIt should be noted that, according to California state corporate records, the petitioner's corporate status in
California has been "dissolved." Therefore, as the petitioner has voluntarily elected to wind-up its operations
and has completely dissolved its business as a corporation, the company no longer exists and can no longer be
considered a legal entity in the United States. Therefore, if the appeal were not being dismissed for those
reasons further explained herein, this would call into question the petitioner's continued eligibility for the
benefit sought.
WAC 04 089 52485
Page 3
(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 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)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(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.
The primary 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
WAC 04 089 52485
Page 4
(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 ofthe 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 petitioner does not clarify in the initial petition whether the beneficiary will perform primarily managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act, and counsel on appeal appears to limit the beneficiary to the managerial classification. A petitioner
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the petitioner is
asserting that the beneficiary will be employed in either a managerial or an executive capacity and will
consider both classifications.
The petitioner described the beneficiary's proposed job duties in an attachment to the Form 1-129 as follows:
"Manage sales operations; negotiate and sign contracts on behalf of the company; market survey; hire and
train managerial personnel; report to the Manager." It should be noted that the petitioner attributed this job
description to the "associate manager," and it remains unclear whether this brief description is truly applicable
to the beneficiary who is described in the Form 1-129 and organizational chart as the "manager."
The petitioner also submitted an organizational chart in which the beneficiary is described as the "manager"
and is shown to be at the top of the United States operation directly supervising an "associate manager" and,
indirectly, a sales manager, an office manager, and a receptionistlbookkeeper.
On March 25, 2004, the director requested additional evidence. The director requested, inter alia, more
detailed descriptions of the job duties of the beneficiary and his subordinate employees.
In response, counsel to the petitioner submitted a letter dated April 28, 2004 in which he describes the
beneficiary's proposed duties as follows:
• Plan, strategize and execute goal, direction and policies of the company's growth
(50%)
WAC 04 089 52485
Page 5
• Hire and fire managerial personnel, in conjunction with the Associate Manage[r]
(20%)
• Prepare and present progress report and growth projections to the Board of Directors
of the foreign company (20%)
• Establish and expand business contacts in the U.S. and overseas. (10%)
The petitioner also described the beneficiary's direct subordinate, the associate manager, as follows:
"Negotiate and sign contracts on behalf of the company; market survey; hire and fire managerial personnel."
The petitioner did not describe the duties of the other employees identified in the organizational chart.
On June 8, 2004, the director denied the petition. The director concluded that the petitioner failed to establish
that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of a manager.
Upon review, the petitioner's assertions are not persuasive.
Title 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 Citizenship and
Immigration Services (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 United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description ofthe job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description ofthe 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. As explained above, a petitioner cannot claim that some of
the duties of the position entail executive responsibilities, while other duties are managerial. A petitioner may
not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of
the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary will devote half of his time to planning,
strategizing, and executing the petitioner's "goal, direction and policies of the company's growth." However,
the petitioner does not specifically define the goal, direction, or policies that the beneficiary will plan and
execute upon or to explain what, exactly, the beneficiary will do on a day-to-day basis in carrying out these
duties. Furthermore, the petitioner states that the beneficiary will spend 10% of his time establishing and
expanding "business contacts in the U.S. and overseas." Once again, the petitioner provided no specific
details regarding the identity, nature, or location of these claimed contracts or what, exactly, the beneficiary
will do to establish and expand these contacts. The fact that the petitioner has given the beneficiary a
WAC 04 089 52485
Page 6
managerial title and has prepared a vague job description which includes inflated duties does not establish that
the beneficiary will actually perform managerial duties. Specifics are clearly an important indication 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 regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, it appears that many of the duties listed by the petitioner are non-qualifying administrative or
operational tasks which do not rise to the level of being managerial or executive in nature. For example, the
petitioner states that the beneficiary will "[p]repare and present progress report and growth projections to the
Board of Directors of the foreign company" and expand "business contacts." However, preparing reports and
engaging in marketing constitute administrative or operational tasks when the tasks inherent to these duties
are performed by the beneficiary. When coupled with the vagueness of the other ascribed duties, e.g.,
planning goals and policies, it cannot be concluded that he will be "primarily" employed as a manager. 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 ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). It is more likely than
not that both the beneficiary and his staff will all primarily perform non-qualifying tasks. See generally
Family, Inc. v. u.s. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 2006).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart and job descriptions for the subordinate staff members, it appears that
the beneficiary will directly supervise one associate manager, and, indirectly, three other employees.
However, the vague job description provided for the associate manager fails to establish that he will primarily
engage in performing supervisory or managerial duties. An employee will not be considered to be a
supervisor simply because of a job title or because he or she supervises daily work activities and assignments.
Rather, the employee must be shown to possess some significant degree of control or authority over the
employment of subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904,
907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. II,
2007». To the contrary, it appears that this employee will perform the tasks necessary to produce a product
or to provide a service, e.g., marketing and contracting. Furthermore, the petitioner has failed to describe the
duties of the other three subordinate employees even though this evidence was 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).
In view of the above, it appears that the beneficiary will be primarily a first-line supervisor of non­
professional employees, the provider of actual services, or a combination of both. A managerial 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of
Church Scientology International, 19 I&N Dec. at 604. Moreover, the petitioner has not established that the
WAC 04 089 52485
Page 7
beneficiary will manage professional employees? Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.'
Similarly, the petitioner has failed to establish that the beneficiary will act 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. 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 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-day 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"
2In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 10I (a)(32) of the Act, 8 U.S.c. § 1101(a)(32), states that "[tjhe 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 ofShin, 11 I&N Dec. 686 (D.D. 1966).
3While the petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. 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. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the 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. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties will be managerial, if any, and what
proportion will be non-managerial. Also, as explained above, the record establishes that the beneficiary will
primarily be a first-line manager of non-professional employees and/or will be engaged in performing non­
qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 04 089 52485
Page 8
and receive only "general supervision or direction from higher level executives , the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above , the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above , it appears that the beneficiary will be primarily employed as a first-line
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore , the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
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).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason .
Beyond the decision of the director , the petit ioner has failed to establish that it still has a qualifying
relationship with the foreign entity, because the petitioner has failed to show that it or the foreign entity is
"doing business" as defined by the regulations.
The regulation at 8 C.F .R. § 214.2(l)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(i)(I)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary"is defined in pertinent part as a corporation"of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity." "Doing business" is defmed in pertinent part as "the regular, systematic,
and continuousprovision of goods and/or services."
In this matter, the petitioner has failed to establish that it is currently "doing business." While the petitioner
submitted tax returns and business 'documents and invoices indicating that the petitioner has purchased imported
goods, the record is devoid of evidence of any sales by the petitioner. Although the tax returns and the income
statement claim that the petitioner has sold goods , these documents are not supported by any corroborating
evidence, e.g., invoices, customer data, or bills of sale. Once again, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceed ings.
Matter ofTreasure Craft ofCalifornia , 14 I&N Dec. 190. 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). Furthermore, the
income statement submitted by the petitioner is of questionable evidentiary value. The accountant who
prepared the statement indicated in a letter dated January 27,2004 that she cannot offer any assurances as to
the accuracy of the income statement and that the statement is based entirely upon the petitioner's
WAC 04 089 52485
Page 9
representations. Finally, the lease submitted for the petitioner's purported business premises lists the
beneficiary as the lessee, and does not list the petitioner, and thus calls into question whether the petitioner
has ever conducted business in the United States. Accordingly, the petitioner has failed to establish that it is
engaged in the regular, systematic, and continuous provision of goods and/or services."
Moreover, the petitioner has failed to establish that the foreign entity has been "doing business." The record is
entirely devoid of any evidence of business activity by the foreign entity. Although the petitioner has submitted
an untranslated advertising brochure, photographs of a building presumably in China, a telephone listing, a
business license, and unaudited financial data, this evidence does not establish the regular, systematic, and
continuous provision of goods and/or services. The petitioner did not submit any invoices, customer data, or bills
of sale other than what concerns the petitioner and its claimed purchaseof goods from abroad.
Accordingly, as the petitioner has failed to establish that it or the foreign entity is "doing business," the petitioner
has failed to establish that it and the foreign entity are qualifying organizations, and the petition may not be
approved for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed abroad
in a primarily executive or managerial capacity. In support of its petition, the petitioner has provided a vague
and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a
day-to-day basis. For example, counsel asserts in a letter dated April 28, 2004 that the beneficiary devoted
50% of his time "develop[ing] business strategies" and 20% of his time preparing and presenting reports and
projections. However, the petitioner failed to specifically define these strategies or to explain what, exactly,
the beneficiary did in performing this duty. Furthermore, the preparation of reports is an administrative or
operational task when the tasks inherent to this duty are performed by the beneficiary. Overall, the vague job
description for the beneficiary fails to establish that the beneficiary was engaged in primarily performing
executive or managerial duties abroad, and the petition may not be approved for this additional reason.
Despite any number of previously approved petitions, CIS does not have any authority to confer an
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section
291 of the Act, 8 U.S.c. § 1361. The prior approvals do not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was successful in the
past in petitioning for the beneficiary, the director properly denied the petition in this case.
Furthermore, if the previous nonimmigrant petition was approved based on the same assertions that are
contained in the current record, the approval would constitute material and gross error on the part of the
director. The AAO is not required to approve an application or petition 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 Eng'g. Ltd. v. Montgomery, 825
4It is noted that, as the instant petition seeks to extend a "new office" petition, the petitioner has also failed to
establish that it has been doing business for the previous year for the same reason. 8 C.F.R. § 214.2(l)(l4)(ii).
For this additional reason, the petition may not be approved.
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Page 10
F.2d 1084, 1090 (6th Cir. 1987), cert. denied , 485 U.S. 1008 (1988).
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 it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises , Inc., 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. Here, that burden has not been met. Accordingly, the appeal will he
dismissed.
ORDER: The appeal is dismissed.