dismissed L-1A Case: Janitorial Services

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
t7
FILE: WAC 06 064 53330 Office: CALIFORNIA SERVICE CENTER Date: APR o. 2OD7
INRE:
PETITION:
Petitioner:
Beneficiary:
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.
~~~Obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 064 53330
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 appeal will be
dismissed.
The petitioner filed this nonimmigrant petltlOn 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 California company, states that it
is a supplier of commercial and industrial janitorial services. The petitioner claims that it is the subsidiary
of Danish Environment, Denmark, located in Aalborg, Denmark. The petitioner seeks to employ the
beneficiary in the position of vice president/director of development for a two-year period.
The director denied the petition on April 12, 2006, concluding that there is insufficient evidence to
demonstrate that the beneficiary will serve in a primarily managerial or executive capacity in the United
States.
Counsel for the petitioner subsequently filed an appeal on April 28, 2006. 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 beneficiary will in fact hold an executive position in the United States. In
addition, counsel for the petitioner clarifies a discrepancy in the U.S. entity's staffing as noted by the
director in the decision. In support of this assertion, the petitioner submits additional evidence.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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)further 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 defmed in paragraph (1)(1)(ii)(G) of this
section.
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing
of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
WAC 06 064 53330
Page 3
prior education, training, and employment qualifies himlher to perfonn the
intended services in the United States; however, the work in the United States
need not be the same work which the alien perfonned abroad.
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity by the U.S. entity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 10I(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department, subdivision, function, or component of the
organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department or
subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as promotion and
leave authorization), or if no other employee is directly supervised, functions at a senior
level within the organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-<layoperations 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) ofthe Act, 8 U.S.c. § I 10I(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primanly-
(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.
WAC 06 064 53330
Page 4
The nonimmigrant petition was filed on December 21,2005. The Fonn 1-129 indicates that the beneficiary
will be employed in the position of Vice PresidentlDirector of Development. In a letter of support dated
December 12,2005, the beneficiary's proposed duties in the United States are described as the following:
The transfer of [the beneficiaryJ is part of a plan to expand the reach of the business in the
United States to customers in a multi-state region that desire efficient, economical janitorial
services. A United States presence by [the beneficiary] is essential in order to properly
manage and expand the current operations. The U.S. operations have grown large enough
the require a person with [the beneficiary's] skills and experience in order to expand its
operations as the management of the current operations is more than enough to occupy the
time of the president. [The beneficiary's] services will ensure that the ambitious expansion
plans of [the U.S. entity] are carried out.
* * *
[The beneficiary] will act as the Director of Development and Vice President of [the U.S.
entity]. He will be responsible for developing and expansion of the U.S. business into a
multi-state operations [sicJ by forming strategic alliances as well as establishing business
relationships leading to current as well as future expansion of business operations. [The
beneficiary] will have the authority to negotiate, set prices, and enter into contracts on behalf
of [the U.S. entityJ. He will also be able to hire support staff as needed.
The petitioner also submitted the current organizational chart of the U.S. entity. The chart indicates the
president as the head of the company and the head of the service and sales departments. The chart also
indicates that the president supervises one employee in the office department, one supervisor ofthe day porter
services department, and two supervisors in the janitorial services department for two separate areas. The
chart shows that the same individual is the supervisor or the day porter services department and the
supervisor ofthe janitorial department located in Los Angeles. The chart also indicates that the supervisors in
turn supervise the day porters and the janitors. The beneficiary's proposed position is not listed on this chart.
In addition, the petitioner submitted a list of the U.S. entity's employees. According to the list, the U.S. entity
employs one president, one secretary, two supervisors, two floor maintenance employees, seven day porters,
and fifty-one janitors. The U.S. entity employs a total of 64 employees. The petitioner also submitted the
U.S. entity's payroll summary, dated October 31,2005, which confinns the employment of 64 individuals.
On January 12, 2006, the director requested additional evidence to establish that the beneficiary will be
perfonning the duties of a manager or executive with the U.S. company. Specifically, the director requested:
(1) a copy of the U.S. company's organizational chart indicating the current names of all executives,
managers and supervisors, and the names, job titles, job duties, educational level, annual salaries/wages for
all employees under the beneficiary's supervision; (2) a more detailed description of the beneficiary's
proposed duties in the U.S., including the employees under his supervision and the percentage of time spent
on each duty; (3) copies of the California Employment Development Department Forms DE-6, Quarterly
Wage Report, for the last four quarters; (4) copies of the U.S. company's payroll summary, Fonns W-2 and
W-3 and Fonn 1099, if applicable; and, (5) copies of the company's IRS Fonn 941, Employer's Quarterly
Federal Tax Return, for the last four quarters.
WAC 06 064 53330
Page 5
In its response dated March 21,2006, the petitioner submitted an organizational chart of the U.S. company.
The chart indicates the president as the head of the office and the head of the service and sales departments.
The chart also indicates that the president supervises the secretary in the office department and the
beneficiary as the head of the development department. The chart indicates that the president supervises the
supervisor of the day porter services, the supervisor of the janitorial services for San Fernando Valley, the
supervisor of the janitorial services for Los Angeles and the beneficiary as supervisor of the San Fernando
Valley location. Finally, the supervisors supervise the day porters and janitors. According to the chart, it
appears that the beneficiary will be the head of the development department and a supervisor of the San
Fernando Valley location. In addition, the beneficiary will supervise the supervisor of the San Fernando
Valley location, who in tum supervises the janitors. The chart does not indicate the number of janitors
employed in the San Fernando Valley location. The petitioner also submitted a list of employees of the U.S.
entity that includes 67 employees. The chart fails to list the individuals in each position, the job duties for
each position, the educational level, and the salaries and wages for each employee as requested by the
director.
The petitioner submitted payroll summaries for the U.S. entity from January 28, 2005 until February 15,
2006. In addition, the petitioner submitted the Form W-2 list for 2005. The petitioner did not submit the
state or federal employer quarterly tax returns as requested by the petitioner. Instead, the petitioner submitted
a letter from Applied Underwriters, the company in charge of the U.S. entity's payroll, which stated that the
company will not disclose the Form DE-6, Quarterly Wage Report, since they are "required to protect our
client's confidential information including that of their employees." Thus, the petitioner submitted a payroll
summary, which confirms the employment of the individuals listed on the employee list.
The petitioner also submitted a letter, dated February, 2006 that specified the proposed duties of the
beneficiary in the United States as the following:
[The beneficiary] is the Director of Development and has been transferred from the Danish
company due to his great experience in this field. [The beneficiary] has over the years
specialized in forming business alliances and producing tools and resources used in the field
of expanding and developing business in this particular service industry. [The beneficiary]
is not only [sic] knows this particular industry extremely well but is an architect within our
company.
In our U.S. company [the beneficiary's] core duties are the following:
• Identify and create winning expansion strategies.
• Take primary responsibility for the design, implementation and maintenance of the
expanSIon.
• Responsibility of this project and ensure that the necessary selection tools and
procedures are culturally sensitive and appropriately translated for use by all staff in
other states than only California.
• Future education of staff in the use and interpretation of [the petitioner's] service and
company culture.
• Create and maintain new business relationships, negotiate annual contracts.
WAC 06 064 53330
Page 6
Also, [the beneficiary] has a limited amount of supervision in order for him to get acquainted
with our current staff and the way they operate, communicate and manage.
The split in the work duties are approximately: 25% supervision 75% development.
In the director's decision dated April 12, 2006, the director noted that the u.s. entity's organizational chart
indicated that the beneficiary would be the head of the development department and the head of the janitorial
services of the San Fernando Valley area. The director also noted that the beneficiary will supervise the
supervisor of the San Fernando Valley, however, that same supervisor is also listed on the same tier as the
beneficiary. In addition, the director noted that the proposed duties of the beneficiary "qualify as performing
tasks necessary to provide a service or produce a product." The director further noted that the petitioner
submitted insufficient evidence to establish that the beneficiary will be employed in a primarily managerial or
executive capacity. Consequently, the director denied the petition.
On appeal, counsel for the petitioner explains that the beneficiary will supervise the supervisor of janitorial
services in the San Fernando Valley area, and thus that supervisor is not on the same level as the beneficiary.
Counsel also states that the duties "relating to the development of new operations are managerial in nature."
Counsel further states that the "current person responsible for such management duties is too engrossed in the
current business operations to successfully and prudently expand the business. He needs
managerial/executive assistance in order to avoid dropping new business opportunities within his grasp." The
petitioner submits a revised organizational chart of the U.s. entity and a letter from the president of the U.S.
entity.
In the letter by the president of the U.S. entity, the president explains that the U.S. entity wishes to expand its
operations and that he needs assistance with this endeavor. The president also explains "as part of my
development work, I examine new markets and make proposals for new business" and many of the proposals
"are being seriously considered by prospective clients." The president also states that he is "stretched too thin
to accommodate the prospective clients" and it is imperative that the beneficiary starts in the position of
Director of Development to "develop business in new areas, implement our business procedures, and thereby
duplicate the success we have enjoyed in other regions."
In addition, the petitioner submits a new organizational chart of the U.S. entity. The chart is similar to the
previously submitted chart, however, the beneficiary is now only in the position of director of development
and is no longer listed as the supervisor of the San Fernando Valley area. In addition, this revised chart now
indicates that the beneficiary will supervise all of the supervisors and their support staff. The chart also
includes two new offices ''to be developed."
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be
employed in a managerial or executive capacity. When examining the executive or managerial capacity of
the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. §
214.2(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be performed
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id.
WAC 06 064 53330
Page 7
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove 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).
The beneficiary's position description is too general and broad to establish that the preponderance of his
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such
as the beneficiary will "identify and create winning expansion strategies"; ''take primary responsibility for
the design, implementation and maintenance of the expansion"; "responsibility of this project and ensure that
the necessary selection tools and procedures are culturally sensitive and appropriately translated for use by all
staff in other states than only California"; and "create and maintain new business relationships, negotiate
annual contracts." The petitioner has neither explained in detail the plans for its expansion, nor explained
what the beneficiary's role will be in supervising personnel. Reciting the beneficiary's vague job
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 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
(B.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990).
Furthermore, the director specifically requested that the petitioner provide a detailed job description,
including the beneficiary's specific duties to be performed in the United States. The petitioner did not
submit the requested job description as requested by the director. Instead, the petitioner reiterated most of
the job duties described in the original job description. In addition, the petitioner requested a description
of the duties performed by the employees supervised by the beneficiary which it failed to submit. 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). The petitioner was put on notice of required evidence and given a
reasonable opportunity to provide it for the record before the visa petition was adjudicated. For this
reason alone, the appeal will be dismissed.
The petitioner's description of the beneficiary's position provides no information regarding his day-to-day
duties, such that they could be classified as managerial in nature. The AAO will not accept an overly
broad and ambiguous job description and speculate as to the related duties.
In addition, in a letter by the president of the U.S. entity that was submitted on appeal, the president explains
that there are several companies interested in the U.S. entity's proposals, however, the petitioner has failed to
provide any evidence as to the business plan for expanding the U.S. operations and if it is actually feasible to
do so. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSaffld, 22 I&N Dec. 158, 165 (Corom. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Since the
petitioner failed to document interested clients or market research relating to a possible expansion, several
of the beneficiary's responsibilities may be merely speculative. The petitioner must establish eligibility at
the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
WAC 06 064 53330
Page 8
In addition, the petitioner submitted two organizational charts that are very different from each other. In the
first organizational chart, the beneficiary is both the director of development and the supervisor of janitorial
services in the San Fernando Valley region. The first chart also indicated that the beneficiary will supervise
the supervisor of that region. However, on appeal, the petitioner submits a revised organizational chart that
indicated that the beneficiary supervises all of the supervisors, porters, and janitorial staff. It appears that the
beneficiary's responsibilities have been elevated. On appeal, a petitioner cannot offer a new position to the
beneficiary, or materially change a position's title, its level of authority within the organizational
hierarchy, or the associated job responsibilities. The petitioner must establish that the position offered to
the beneficiary when the petition was filed merits classification as a managerial or executive position.
Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See
Matteroflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998).
The record shows that as of the date of filing, the petitioner asserts that the beneficiary will control and
direct subordinate managerial staff. According to the organizational chart, the beneficiary will supervise
the supervisor of the San Fernando region, who in tum supervises the janitors. Although the beneficiary
is not required to supervise personnel, if it is claimed that his managerial duties involve supervising
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or
managerial. See § 101(a)(44)(A)(ii) of the Act.
In evaluating whether the beneficiary manages 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 101(aX32) 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 ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the administrative and scheduling functions of the supervisor,
who is the beneficiary's subordinate. Thus, the petitioner has not shown that the beneficiary's subordinate
employee is professional as required by section 101(a)(44)(A)(ii) of the Act.
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 lOl(a)(44)(B) of the Act, 8 U.S.C. §
110l(a)(44)(B). 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 managerial 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-operations of the
WAC 06 064 53330
Page 9
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" and receive only "general
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id. A managerial or executive 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. See Matter of Church Scientology International, 19 I&N Dec. at 604. As the beneficiary
will supervise one supervisor, the petitioner has not established a complex organizational structure which
would elevate the beneficiary to an executive-level position. In the instant matter, the petitioner has not
established evidence that the beneficiary will be employed in an executive capacity with the U.s. entity.
Furthermore, the petitioner has not established that the beneficiary will be managing an essential function
of the "development and expansion" of the U.S. company as the director of development. 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, 8 U.S.C. § 1101(a)(44)(A)(ii). 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(1)(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. 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. Boyang, Ltd. v. IN.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988». In this matter, the petitioner
neither claimed nor provided evidence that the beneficiary manages an essential function.
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the
development functions for the business. The fact that the beneficiary has been given a managerial job
title and general oversight authority over the business is insufficient to elevate his position to that of a
"function manager" as contemplated by the governing statute and regulations.
According to the organizational chart submitted with the petition, the beneficiary will supervise the
supervisor of janitorial services for the San Fernando Valley area, but does not have any subordinates in
the development department. Thus, it appears that the beneficiary will be performing all of the market
research, marketing and sales, financial development, negotiations, and client development. 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. at 604. Based on the foregoing
WAC 06 064 53330
Page 10
discussion, there is insufficient evidence to establish that the beneficiary would be employed by the
petitioner in a primarily managerial or executive capacity. For this reason, the appeal will be dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismisSed.