dismissed L-1A Case: Kitchen Furniture

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
Office: TEXAS SERVICE CENTER Date: J~JL 3; t
u.S. Citizenship
and Immigration
Servicesidentifying data deleted to
prevent clearly unwarranted
invasion of personal privacy
File: SRC 06 079 50585
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 110l(a)(l5)(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 . iemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 079 50585
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 Immigration and
Nationality Act (the Act), 8 U.S.C. § 11 01(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of Florida and is allegedly engaged in the distribution, sale, and installation of custom kitchen
furniture. 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 .
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 an executive. Counsel submits a brief and
additional evidence, including substantial documentation concerning the petitioner's business operations
occurring after the date of the filing of the instant petition on January 19,2006.
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)(I)(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 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
SRC 06 079 50585
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same work which the alien performed abroad.
The regulation at 8 C.F.R. § 21 4.2(l)(l4)(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)(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
(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.
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Section lOl(a)(44)(B) of the Act, 8 U.S.C. § llOl(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. While counsel asserts on appeal that the beneficiary will be employed in an
executive capacity, counsel does not clearly state that the beneficiary will not also be employed in a
managerial capacity. Given the lack of clarity, the AAO will consider the petition as if the petitioner is
claiming that the beneficiary will be employed in either an executive or a managerial capacity and will
consider both classifications.
Counsel to the petitioner described the beneficiary's job duties in a letter dated January 9,2006 as follows:
[The beneficiary] has and will perform the same duties as she has been performing for the
UK Employer for more than [the] past three (3) years. In this regard, she has and will
continue to be responsible for all aspect[s] with overseeing the day[-]to[-]day operation of the
U.S. company. Specifically, the Beneficiary will be responsible for continued initial start up
of the US operations inclusive of setting and implementing sales and marketing operations,
short and long term company goals, policies, budgets and protocols. She will maintain her
authority to hire and terminate employees for cause, as well as engage in contract
negotiations on behalf of the company.
Counsel further explained that, due to the beneficiary's husband's inability to obtain an L-2 visa until
November 2005, the petitioner was unable to "fully set up" the United States entity during its first year in
operation. Although the original "new office" petition was approved for one year on February 10, 2005, and
the beneficiary was issued an L-l visa on April 18, 2005, the beneficiary "did not want to spend more capital
to expand the company without her husband being able to live with her." Counsel further asserts that, now
that the beneficiary's husband has arrived in the United States, the petitioner plans to open a showroom and
commence conducting business. The petitioner apparently devoted 2005 to "setting up its operations for
business, i.e. obtaining bigger office with a showcase space, obtaining occupational licenses, setting up sales
tax payment account with the State of Florida, hiring services to pay taxes to IRS, etc."
On February 22, 2006, the director requested additional evidence. The director requested copies of the
petitioner's wage reports and a detailed organizational chart for the petitioner.
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In response, the petitioner submitted wage reports, which indicate that the petitioner did not employ anyone
during the fourth quarter of 2005 or the first quarter of 2006. The petitioner also submitted a letter dated
March 23, 2006 in which the petitioner offered further explanations for its inability to hire staff or to
commence doing business in the United States. However, the petitioner did indicate that it "sold its first deal"
in March 2006, several weeks after the filing of the instant petition and after the first anniversary of the
approval of the original "new office" petition.
On April 21, 2006, 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, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive.
Counsel also submitted additional evidence consisting primarily of documentation concerning the petitioner's
business operations occurring after the date of the filing of the instant petition on January 19,2006.
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 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.
As a threshold matter, it must be noted that evidence of the petitioner's business operations, and the
beneficiary's purported performance of managerial or executive duties, after the date of the filing of the
petition is irrelevant to this proceeding. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (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 Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998).
Therefore, the evidence submitted by counsel on appeal, which concerns the beneficiary's duties and the
petitioner's business activities after the filing of the instant petition, will not be considered by the AAO in
adjudicating the instant appeal.
In view of the above, 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 set and implement sales and
SRC 06 079 50585
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marketing operations and establish short and long term company goals, policies, budgets and protocols.
However, the petitioner does not explain what sales and marketing operations will be set and implemented or
what goals, policies, budgets, and protocols will be established. The fact that the petitioner has given the
beneficiary a managerial or executive title and has prepared a vague job description which includes lofty
duties does not establish that the beneficiary will actually perform managerial or executive 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, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
duties ascribed to her. This is particularly important in this matter because the duties listed by the petitioner
appear to be 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 engage in sales
and marketing operations. However, marketing and sales duties constitute administrative or operational tasks
when the tasks inherent to these duties are performed by the beneficiary. As the record fails to identify any
employees or contractors who will relieve the beneficiary of the need to perform the non-qualifying tasks
inherent to both the sales and marketing duties and the operation of the business in general, it must be
concluded that she will perform all of these tasks. As the petitioner has not established how much time the
beneficiary will devote to such non-qualifying tasks, it cannot be confirmed that she will "primarily" be
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 of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988).
While counsel on appeal asserts that the petitioner utilizes independent contractors, the record is devoid of
any evidence that independent contractors were relieving the beneficiary of the need to perform non­
qualifying administrative or operational tasks as of the date of the filing of the instant petition. Moreover, the
prospective independent contractors described on appeal appear related primarily to the installation of the
petitioner's product and not to the performance of sales, marketing, or those general administrative tasks
inherent to the operation of the petitioner's business. Therefore, even if the petitioner's proposed utilization of
independent contractors after the filing of the instant petition were not irrelevant to this proceeding (see
supra), their utilization has not been shown to relieve the beneficiary of the need to primarily perform non­
qualifying administrative or operational tasks.
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 record, the petitioner has no employees other than the beneficiary. While the petitioner
asserts that it has utilized independent contractors, the supervision or management of independent contractors
will not permit a beneficiary to be classified as a managerial employee as a matter of law. See section
101(a)(44)(A)(ii) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2). The Act is quite clear that a managerial
employee must manage employees in order to be classified as a manager for purposes of this visa
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classification. Therefore, the petitioner has not established that the beneficiary will be employed primarily in
a managerial capacity. 1
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"
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 be acting 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, the beneficiary, the only employees of the petitioner, appears to be
primarily performing the tasks necessary to produce a product or to provide a service. It has not been
established that independent contractors are relieving, or will relieve, the beneficiary of the need to perform
non-qualifying tasks. Therefore, the petitioner has not established that the beneficiary will be employed
primarily in an executive capacity.
lWhile the petitioner has not clearly 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(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. 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 would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary will primarily be engaged in performing non-qualifying operational or administrative tasks.
Absent a clear and credible breakdown of the time spent by the beneficiary performing her duties, the AAO
cannot determine what proportion of her duties would 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. of
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
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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 petitioner has failed to establish that it has been "doing business" for
the previous year or that it is a "qualifying organization" as defined in the regulations.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii)(B) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States entity has been doing business as defined in paragraph
(l)(1)(ii)(H) of this section for the previous year[.]
In this matter, the record reveals that the petitioner did not engage in the regular, systematic, and continuous
provision of goods and/or services during its first year of operation. While the petitioner may have obtained
certain licenses and engaged in other "set up" activities, it clearly did not engage in any business activity as
defined in the regulations. The petitioner did not employ anyone or sell any products or services during its first
year in operation. Moreover, as of the date of the filing of the petition, the petitioner was not engaging in the
regular, systematic, and continuous provision of goods or services. As indicated in the letter dated March 23,
2006, the petitioner "sold its first deal" in March 2006, which is several weeks after the filing of the instant
petition as well as several weeks after the first anniversary of the approval of the original "new office"
petition.
Accordingly, as the petitioner has not established that it did any business during its first year in operation or
was doing business at the time the instant petition was filed, the petitioner is ineligible for the benefit sought
2It is noted that counsel to the petitioner cited the unpublished opinion in Matter ofIrish Dairy Board, A28­
845-42 (AAO Nov. 16, 1989), in support of her contention that the beneficiary is primarily employed as an
executive. In that decision, the AAO recognized that the sole employee of a petitioner could be employed
primarily as a manager or executive provided he or she is primarily performing executive or managerial
duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no evidence to
establish that the facts of the instant petition are analogous to those in the unpublished decision. Second,
while 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the
administration of the Act, unpublished decisions are not similarly binding. Third as explained above, the
petitioner has not established that the beneficiary is primarily employed in an executive or managerial
capacity. This is paramount to the analysis, and a beneficiary may not be classified as a manager or an
executive if he or she is not primarily performing managerial or executive duties regardless of the number of
people employed by the petitioner. Therefore, as the petitioner has not established this essential element, the
decision in Matter ofIrish Dairy Board would be irrelevant even if it were binding or analogous.
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pursuant to 8 C.F.R. § 2 I 4.2(l)(l4)(ii)(B), and the petition may not be approved for this additional reason.
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 Dar 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.