dismissed L-1A Case: Investment And Sales

identifyingdatadeletedto
preventclearly unwarr~ted
invasionofpersoDllpnvaGY
U.S. D.l1partmentof Hom111and Security
20 Massachusetts Ave., N.W., Rrn. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 800 29823 Office: TEXAS SERVICE CENTER Date:·JtPR 0 5 •
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.c. § 1101(aX15)(L)
IN BEHALF OF PETmONER:
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 05 800 29823
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 visa petition seeking to extend the employment of its president as an L­
lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the hmnigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a limited liability company organized
under the laws of the State of Texas and is described as being engaged in the business of "investment and
sales." The petitioner claims a qualifying relationship with Corporacion Merolex, c.A. of Venezuela. 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 for three years.
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be
employed in the United States in a primarily executive or managerial capacity; or (2) the petitioner had been
doing business for the previous year as required by 8 C.F.R. § 214.2(I)(14)(ii)(B).
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 record establishes that the beneficiary will be employed primarily in an executive capacity.
Counsel further asserts that the record establishes that the petitioner had been doing business for the previous
year. Counsel argues that the director failed to properly consider the evidence in the record. In support of the
appeal, counsel submits a brief.
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 (l)(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
SRC 05 800 29823
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managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher 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(IXI4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(I)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(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.
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in
a primarily executive capacity.
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 Of 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 petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section lOl(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. However, on appeal,
SRC 05 800 29823
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counsel to the petitioner clearly and repeatedly indicates that the petitioner is seeking to classify the
beneficiary as an executive employee. Therefore, the AAO will limit its consideration of this appeal to this
classification.
The only description of the beneficiary's duties appears in a letter dated June 28,2004. This letter, which was
submitted with the original "new office" petition, was resubmitted with the current petition and quoted by
counsel in his appellate brief. Counsel asserts that the following description "clearly described [the
beneficiary's] duties as President" of the petitioner:
As President, [the beneficiary's] position in the United States subsidiary will be to oversee
and direct the initial development of the new corporate office including the establishment of
corporate financial and management goals. His duties will include the hiring of staff and
independent contractors and delegating work to the appropriate entities. He will be
responsible for reviewing monthly financial and marketing reports and determining the
appropriate corporate goals in response to these reports. In sum, [the beneficiary] will have
the authority to develop and guide the overall operational and policy management of the
United States affiliate during his period of residency.
Counsel described the petitioner's business in a letter dated July 17,2005 as being "engaged in business and
investment in the United States." Counsel elaborated as follows:
One such venture is the establishment of an [sic] subsidiary corporation and investment
opportunity. On March 25,2004, [the beneficiary] and [the petitioner] incorporated German
Cars Auto Shop, L.L.c. ("German Cars") under the laws of Texas.
Counsel previously asserted in his letter of July 6, 2004, that the petitioner owns 100% of German Cars.
However, the 2004 IRS Form 1065 for German Cars indicates that the petitioner only owns 49% of German
Cars. An unrelated party, owns the remaining 51% interest.
The petitioner also provided payroll records, a Form 941, and tax documentation indicating that the petitioner
had one employee in 2005 and no employees in 2004. The petitioner's single employee in 2005 was not the
beneficiary. However, the petitioner also provided payroll records and a Form 941 indicating that German
Cars employed four people, including the beneficiary, in the quarter preceding the filing of the petition.
On July 21, 2005, the director requested additional evidence. Specifically, the director requested additional
evidence regarding the staffing of the petitioner and evidence that the petitioner and the foreign entity have
been doing business.
In response, the petitioner provided Forms 941 for both the petitioner and German Cars for the second quarter
of 2005. These forms indicate that, while the petitioner still employed its single employee during this time
period, German Cars replaced three of its four employees. However, the beneficiary was still employed by
German Cars, along with three other employees, during this period and was not employed by the petitioner.
The petitioner also provided a letter dated July 27,2005 in which it asserts that it employs eight people and
SRC 05 800 29823
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owns 50% of German Cars. All of the employees are described as either automobile service employees or
receptionists. While the petitioner and counsel indicate that the petitioner employs, and the beneficiary
supervises, a "general manager," the petitioner fails to reveal the identity of this general manager. Therefore,
the record is unclear as to whether the beneficiary is actually the general manager or the position is vacant.
The record also does not explain why the wage reports for both entities identify a total of five employees
while the petitioner lists eight employees excluding the beneficiary.
Finally, the petitioner provided invoices indicating that the petitioner, in addition to "investing" in German
Cars, also sold equipment in October and November 2004 and in May and June 2005. Counsel confirmed in
his letter dated August 14, 2005 that the petitioner began selling equipment in October 2004, almost three
months after the "new office" petition was approved. Other than a lease, tax documents, bank statements and
letters, letters from the purchasers of the equipment described in the invoices, and counsel's statements, no
other evidence of the petitioner's business activities was presented.
On August 25, 2005, the director denied the petition. The director concluded, inter alia, that the petitioner
failed to establish that the beneficiary will be employed primarily in an executive or managerial capacity.
On appeal, counsel to the petitioner asserts that the director erred and that the record establishes that the
beneficiary will be employed primarily in an executive capacity.
Upon review, the petitioner's assertions are not persuasive. It should be noted that the AAO carefully
reviewed all of the evidence presented by the petitioner, both initially and in response to the Request for
Evidence, and that this decision is being rendered after the AAO's thorough review of this evidence and
counsel's brief.
Title 8 C.F.R. § 2l4.2(1)(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 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. ld.
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
SRC 05 800 29823
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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. Individuals will not be deemed executives under the statute
simply because they have executive titles or because they "direct" the enterprise as the owners or sole
managerial employees. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id.
In this matter, the petitioner has provided a vague and nonspecific job description of the beneficiary's duties
that fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, while the petitioner
identifies the beneficiary's duties as primarily setting goals and guiding "the overall operational and policy
management" of the United States operation, the petitioner fails to specifically define these goals or policies
or to provide any credible description of the beneficiary's duties. 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 of California, 14 I&N Dec. 190 (Reg. Corom. 1972). 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), afj'd, 905 F.2d 41 (2d. Cir. 1990). Absent a credible and
detailed description of the beneficiary's duties, it cannot be concluded that he is employed primarily in an
executive capacity.1
Based on the record as presented, it appears as if the beneficiary is primarily the fIrst-line supervisor of the
employees providing automobile repair and maintenance services. An executive employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor. See Matter of
Church Scientology International, 19 I&N Dec. 593,604 (Corom. 1988). Therefore, these duties may not be
used to classify the beneficiary as an executive. While the petitioner does not need to establish that the
beneficiary will supervise and control the'work of other supervisory, professional, or managerial employees in
order to classify him as an executive, the petitioner must still establish that the beneficiary will be primarily
employed as an executive. As the supervision of non-supervisory or non-professional employees is not a duty
which could qualify the beneficiary as an executive, the petitioner's listing of these duties for the beneficiary
may not result in his classification as an executive unless it can be demonstrated that he is otherwise primarily
performing executive duties. In this matter, the petitioner has not established that the beneficiary will
primarily perform executive duties since the job description lists either non-qualifying duties, i.e., acting as a
first-line supervisor, or vaguely described duties, which mayor may not be qualifying.
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
lIt is noted that the director concluded in her decision that CIS "understands the other four employees will
provide the actual services and not the beneficiary." In reviewing the record, the AAO disagrees with this
statement and hereby withdraws this conclusion. As indicated above, the record is entirely devoid of any
coherent job description for the beneficiary, or for the subordinate employees, which could provide CIS with
an understanding as to what he and the other employees will actually do on a day-to-day basis. Consequently,
the record does not establish that the beneficiary will not provide services directly to customers.
SRC 05 800 29823
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in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
The size of a company may be especially relevant when CIS notes discrepancies in the record and fails to
believe that the facts asserted are true. Id. In this case, the record is rife with inconsistencies. For example,
while the petitioner and counsel assert that the petitioner has eight employees, the wage reports for the
petitioner and German Cars indicate that these two companies have never employed more than five people.
Moreover, while counsel indicates in his letter dated July 6, 2004 that the petitioner owns 100% of German
Cars, the petitioner asserts in its letter of July 5, 2005 that it owns 50% of German Cars and the petitioner's
2004 IRS Form 1065 shows that the petitioner only owns 49% of German Cars. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of
the remaining evidence offered in support of the visa petition. Id. at 591.
Accordingly, the petitioner has not established that the beneficiary will be primarily engaged in performing
executive duties, and the petition may not be approved for that reason. 2
Beyond the decision of the director, a related matter is whether the beneficiary will be employed by a
qualifying organization.
The regulation at 8 C.F.R. § 214.2(1XI4)(iiXA) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(I)(ii)(G) ofthis 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 defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (lXl)(ii) of this section" and "is or will be doing business."
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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.
2As indicated above, while the petitioner appears not to be claiming that the beneficiary may be classified as a
manager, the record would nevertheless fail to support this assertion. The AAO concludes, beyond the
decision of the director, that the petitioner has not established that the beneficiary will be primarily employed
as a manager for the same reasons articulated above.
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As explained above, the record indicates that the beneficiary is and will be an employee of German Cars and not
of the petitioner. The petitioner alleges that it owns and controls German Cars, a Texas limited liability company.
As the petitioner is owned and controlled by the foreign entity, if the petitioner is established to own and control
Gennan Cars, then a qualifying relationship between the foreign entity and German Cars would be established.
However, as explained above, the record contains serious inconsistencies regarding the ownership and control of
German Cars. In fact, the only objective evidence regarding ownership and control, i.e., the 2004 IRS Form
1065, Schedule K, indicates that the petitioner owns 49% of German Cars. Therefore, as the petitioner has not
established that the beneficiary is employed by a qualifying organization, the petition may not be approved for
this additionalreason.
The second issue in the present matter is whether the petitioner has been "doing business" for the preceding
year.
The regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii)(B) states that a petition to extend a "new office" petition filed on
Form 1-129shall be accompanied by:
Evidence that the United States entity has been doing business as defined in paragraph
(1)(l)(ii)(H) of this section for the previous year[.]
"Doing Business" is defined in part as "the regular, systematic, and continuous provision of goods and/or
services by a qualifying organization." 8 C.F.R. § 2l4.2(l)(1)(ii)(H).
As explained above, the petitioner provided invoices indicating that the petitioner, in addition to purchasing a
minority interest in German Cars, also sold equipment in October and November 2004 and in May and June
2005. Counsel confirmed in his letter dated August 14, 2005 that the petitioner began selling equipment in
October 2004, almost three months after the "new office" petition was approved. Other than a lease, tax
documents, bank statements and letters, letters from the purchasers of the equipment described in the
invoices, and counsel's statements, no other evidence of the petitioner's business activities was presented.
In view of the above, the AAO agrees that the petitioner has not established that it has been "doing business"
in a regular, systematic, and continuous manner for the required one-year period. First, the petitioner's
acquisition of a minority interest in German Cars is not "doing business." Likewise, the business activities of
German Cars cannot be used to establish that the petitioner is "doing business" since German Cars has not
been established to be a qualifying organization. Second, the petitioner's occasional sale of equipment to a
handful of customers is not "doing business." As explained above, the petitioner must establish that it
continuously, systematically, and regularly provided goods and services. However, the record indicates that
the petitioner sold equipment to a few customers on a few occasions in late 2004 and mid 2005. Not only did
the petitioner fail to engage in any measurable business activity until three months after the approval of the
initial "new office" petition, the petitioner engaged in business thereafter episodically. While the size of these
few transactions may have been substantial, the record is devoid of any evidence establishing that the
infrequency of these transactions is customary for the type of business in question.
Accordingly, the petitioner has not established that the petitioner had been "doing business" during the year
preceding the filing of the petition, and the petition may not be approved for that reason.
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The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). 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.
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 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 be
dismissed.
ORDER: The appeal is dismissed.
J