dismissed L-1A Case: Investment And Consulting

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
~UBLICCOPY
identifYi,.data.leted to
preventclearlyUOWtIrranted
mv_OIlofpersonaJprivacy .
u.s.Citizenship
and Immigration
Services
Office: TEXAS SERVICE CENTER Date: DEC 0 6 2006SRC 05 10850329FILE:
INRE: Petitioner:
Beneficiary:
PEnTION:
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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:
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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.uscis.gov
SRC 05 10850329
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act the Act 8 101 a 15)(L). The petitioner, a Florida corporation, claims to be the subsidiary of
located in Mumbai, India. The petitioner identifies itself as an investment,
consulting, and hiring agent. 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 will be
employed in the United States in a primarily managerial or executive capacity.
I
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the
director's decision was erroneous, and that contrary to the director's findings, the petitioner is qualified for the
benefit sought. In support ofthis contention, counsel submits a brief and additional evidence.
To establish eligibility for the L-1 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(l)(l4)(ii) 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 defined in paragraph (l)(l)(ii)(G) of this section;
(b) Evidence that the United States entity has been doing business as defined III
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 state~ent 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 ~hen the beneficiary will be employed in a managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
SRC 05 108 50329
Page 3
The issue in this 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;
-t.
(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;
-e-
(iii) if another employee or other emplo~ee~ 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 daj 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 themanagement 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.
, , i • .. ••
In a letter dated March 4, 2005, counsel for the petitioner explained that the beneficiary, in his capacity as
president of the U.S. entity, had obtained the exclusive rights to be the hiring agent for a U.S. based ship for
This claim was repeated in a separate letter from the petitioner dated March 1,
, ted that in August 2004, the beneficiary had hired two subordinate employees,
namely, Amit Handa, secretary, and Rajiv Pandey, human resources manager.
SRC 05 10850329
Page 4
On March 15, 2005, the director requested additional evidence pertaining to the nature of the beneficiary's
position in the u.s.business. The request specifically asked for "convincing evidence" that the beneficiary is
employed in a managerial position and further requested additional information regarding the duties, and
educational backgrounds of the other employees, as well as their place in the organizational hierarchy of the
petitioner.
In a response dated April 8, 2005, counsel submitted the following description of the beneficiary's duties:
Responsibilities:
)0- To develop and execute business plans.
)0- To conduct research activities in new markets and then design strategies based on the
study.
)0- Give strategic Directions[.]
)0- To Hire and Fire Employees.
)0- To appoint consultants and vendors to meet the business requirements.
)0- To supervise and oversee all the major, departments like Finance, Marketing &
Human Resources department. Conduct daily briefing with department heads in
regards to daily operation matter and ensure instructions and directives are
disseminated.
)0- To manage and endure that highest level of service is provided to our/customers.
)0- To ensure the highest servic~ standard and achieve the desire[d] budgeted cost and
revenue presented to the Board of Directors.,
)0- To optimize resources and finances of the company[.]
)0- Networking with Industrial lobbies, Business world, Media and Government bodies
)0- Build secondlevel ofleadership.
)0- To meet bottom lines[.]
)0- To liaise with all major Client's, collect feedback and then develop system and
procedure's [sic] to satisfy the customers.
)0- To conduct the final interviews before the candidate is placed.
A list of duties for the secretary and human ~esources manager were also provided. These duties indicated
that .they answered to the petitioner in his capacity as president. Also, the petitioner indicated that since the
filing of the petition, it had hired a third employee, who occupied the position 'of receptionist.
On April 22, 2005, the director denied the petitions The director found that the evidence in the record was
insufficient to establish that the beneficiary, 'would primarily be employed in a managerial or executive
capacity. The director concluded that the 'documentary evidence submitted did not establish that the
beneficiary had sufficient subordinate staff to ieJieve him from performing non-qualifying duties.
On appeal, counsel for the petitioner reasserts that the beneficiary, by virtue of his position as president, is by
definition functioning in a managerial and/or executive capacity, and contends that the director's decision to
find otherwise was erroneous. Counsel' further asserts that the petitioner has only been operating for eight,i
./
SRC 05 108 50329 v
Page 5
months (due to a delay in the beneficiary's arrival in the UnitedStates), and that it now employs a total of
four persons: Based on these factors, counsel requests reconsideration of the denial.
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. § ~14~2(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 description of duties provided by the petitioner in these proceedings does little to describe the
beneficiary's actual duties, nor does it describe the nature of the beneficiary's day-to-day tasks. Instead, it
merely provided a vague overview of the nature of his duties; namely r that he would function as president and
oversee virtually all aspects of the business. When a specific list of duties was requested, counsel responded,
. but such duties as "to meet bottom lines" and "to build second level of leadership" are simply too vague to
understand what the beneficiary will do on a daily basis. 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), af]'d, 905 F.2d 41 (2d. Cir. 1990).
While certain aspects of the beneficiary's position remain vague, some duties, like "hire and fire employees"
and "conduct final interviews before candidate is placed" are more specific. While it does appear that the
beneficiary has hired two employees since his arrival in the United States in August 2004, it simultaneously
appears that he still plays a .large and active role in generating the actual services of the business. 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. Matter a/Church Scientology International,
19 I&N Dec. 593, 604 (Comm. 1988).
More specifically, the petitioner indicates that it has an exclusive contract with Norwegian Cruise Lines 'in
which it hires staff for one of its U.S. based ships. The petitioner claims that since August 2004 to April
2005, the beneficiary has operated in a primarily managerial and/or executive position while overseeing this
business, leaving the hands-on, non-qualifying tasks to the secretary and the human resources manager.
However,it is clear from the description of duties that the beneficiary personally conducts final interviews
with candidates before they are selected to work for the petitioner's client. Presuming that the exclusive job
of staffing an entire cruise ship requires a major amount of employee screening and interviews, it appears that
the beneficiary is required to extensively engage in this non-qualifying task. In particular, the board of
directors, as set forth in an extract from the meeting minutes dated January 27, 2005, specifically authorize
the beneficiary to conduct the final interviews, including traveling to the interview sites as well as overseeing
and controlling the interview and selection procedure. Since the record indicates that Norwegian is currently
the petitioner's only client, it is clear that the beneficiary's services are essential to the interview process and
the provision of successful staffing services to the client. Since.it does not appear that the other two
employees on staff at that time had the authority to make final decisions on eligible candidates, that would
leave the beneficiary as the sole employee responsible for the provision of the petitioner's services. As stated
above, 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. Id.
SRC 05 108 50329
Page 6
The AAO, therefore,upon review of the record of proceeding, concurs with the director's finding that the
petitioner has not established that the beneficiary will be employed in either a primarily managerial or
executive capacity. The petitioner appears to have only recently retained the services of two additional
employees, and hired a third' person since the filing of the extension. It is clear that a major responsibility,
namely, the final say in selecting qualified candidates, rests with the beneficiary, who personally interviews
such persons. Typically, such an active role in personnel selection is not the type of duty in which a manager
or executive would engage. However, despite the hiring of two subordinate employees, the petitioner failed
to delegate this primary role to either of them, thus relying on the beneficiary's active participation in non­
qualifying duties.
On appeal, counsel argues that the petitioner is expanding in size and asserts that since it has only been in
operation for eight months, it should not be penalized for the beneficiary's role in the organization. Pursuant
I . .' •
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, Citizenship and
Immigration Services (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)(14)(ii)(D). The
regulation at 8 C.F.R. § 214.2(l)(3)(v)(G) 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. Despite 'counsel's contentions on appeal, in
which she asserts that the beneficiary has had less than one year to commence the business, if the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational tasks, the petitioner is ineligible by regulation for an extension. The fact that the beneficiary. .
entered the U.S. four months after the visa was granted is irrelevant for purposes of this analysis. In the
instant matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly
managerial or executive position. For this reason, the petition may not be approved.
Beyond the decision of the 'director, the petitioner indicates that the beneficiary is the sole owner of the
foreign entity, which in tum owns the U.S. entity. If this fact is established, it remains to be determined that
the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. § 214.2(l)(3)(vii) states that if
the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by
evidence that the beneficiary's services are to be used for a temporary period and that the. beneficiary will be
transferred to an assignment abroad upon the completion of the temporary services in the United States. In
the absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to be used
temporarily or that he will be transferred to an assign~ent abroad upon completion of his services in the
United States.
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 discretiori with respect to all of the AAO's enumerated grounds. 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).
SRC 05 108 50329
Page 7
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.