dismissed L-1A Case: Language Services

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
PUBLIC COpy
identifying data deleted to
preventclearly unwarranted
invasion of personal privacy
022007
u.S. Citizenship
and Immigration
Services
Petitioner:
Beneficiary:
INRE:
FILE:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER: SELF-REPRESENTED
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.
.•.........""-''' .~:) ..,.,....~ /'
R~bertfif;~an~, Chief
Administrative Appeals Office
www.uscis.gov
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Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa, and denied
a subsequent motion to reopen. 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)(l5)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § 1101 a 15 L. The etitioner, a cOrPoration organized in the State of Florida,
claims to be the subsidiary of , located in Cali, Colombia. The petitioner
identifies itself as a language institute. 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 filed a motion to reopen in response to the denial. Upon review, the director denied the motion
based on the petitioner's failure to submit new facts and evidence to overcome the basis for the denial. On
appeal, the petitioner contends that the beneficiary does in fact qualify as a manager or executive, and submits
a brief and additional evidence in support thereof.
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)(14)(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 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
SRC 05 171 51763
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capacity; and
(e) Evidence of the financial status of the United States operation.
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;
(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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies 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.
In a letter dated May 18, 2005, the petitioner stated that the petitioner had grown within the past year and now
has two locations within Florida. The petitioner further stated that it had three divisions within its language
SRC 05 171 51763
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institute; namely, an ESOL Division , which teaches English as a second language to foreign language
speakers; a Foreign Language Division, dedicated to the teaching of foreign languages including Spanish,
French, German, and Italian; and a Translation and Interpretation Division, which performs translation and
interpretation of foreign language documents.
. .- .... .
The petitioner explained that within the U.S. entity, the petitioner acted as president and oversaw seven
employees. Specificall b wa of its organizational chart, the petitioner indicated t ry
directly supervise the Langua e Center Director, who in turn supervised , a
sales representative, three department h Head of ESOL Department
Head of Translation Department ; an Hea~nguage Division. Each
department head in tum oversaw one teacher/translator, namely_(ESOL) ,
(Translation) , and (Foreign Language).
The petitioner indicated that the beneficiary 's proposed duties in the United States included the following:
EXAMPLES OF IMPORTANT AND ESSENTIAL DUTIES (55% of his [sic) time
dedicated to these duties)
1. Oversee all aspects of the operation.
2. Develop and maintain the vision of the Company; oversee marketing, product
development, manufacturing, finance, and customer service; approve all financial
obligations; seek business opportunities and strategic alliances with other
organizations ;
3. Has authority to enter and negotiate contracts on behalf of the Company.
4. Planning, developing, and establishing long-range goals and objectives of business
organization in accordance with board directives and corporation charter.
5. Conferring with advisors to plan business objectives, to develop organizational
policies to coordinate functions and operations, and to establish responsibilities and
procedures for attaining objectives , and also in then implementing goals through
subordinate administrative personnel and sub-contractors.
6. Plan, develop, and establish policies and objectives of business organization in
accordance with board directives and company charter ; direct and coordinate
financial programs to provide funding for new or continuing operations in order to
maximize return on investments and increase productivity.
7. Liaison activities with the accountants and lawyers who contract with the Company .
8. Hiring staff and other personnel actions, including promotions, transfers, discharges,
or disciplinary measures.
FINANCIAL ADMINISTRATIVE AND BUDGETING DUTIES (45% of his [sic) time
dedicated to these duties):
1. All aspects of the Company 's finance (budget and accounts receivable)[sic],
administration) [.]
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2. Reviewing activity reports and financial statements to determine progress and status
in attaining objectives and revising objectives and planning in accordance with
current conditions.
3. Directing and coordinating formulation of financial program to prove funding for
new or continuing operations to maximize returns on investments, and to increase
productivity.
4. Develop, administer, monitor, and coordinate department budget; forecast funding
needs for staffing, materials, and supplies; capital equipment and facility
maintenance; monitor and approve expenditures; make recommendations as
necessary.
5. Confers with management personnel to establish production and quality control
standards, develop budget and cost controls, and to obtain data regarding types,
quantities, specifications, and delivery dates of products ordered and serviced.
6. Administrative control and conformance with legal requirements of the firm.
Finally, the petitioner submitted copies of its quarterly tax return for the first quarter of 2005, which
demonstrated that at the end of March 2005, h n r employed only three persons; namely, the
beneficia~ (Director), and (Head of Translation Department). The
documentation submitted for 2004 indicated that , Head of the Foreign Language Division,
provided contractual services for the petitioner but was not a salaried or hourly employee.
On July 14, 2005, the director requested additional evidence pertaining to the nature of the beneficiary's
position in the U.S. business. The request asked the petitioner to submit a more detailed description of the
day-to-day duties of the sales representative, as well as documentation establishing the number of employees
currently retained by the petitioner. Specifically, payroll records, quarterly tax returns, and Forms 1098 and
1099 were requested to establish the number of employees and contractors. Finally, evidence establishing the
date of hire for all employees was requested.
The petitioner submitted a response dated August 15, 2005. The petitioner indicated that it currently
employed five independent contractors, five full-time employees, and one freelance employee. In support of
these contentions, the petitioner submitted copies of its most recent quarterly tax return, copies of Forms W-4
and W-9, and copies of cancelled paychecks to various contractors.
On October 5, 2005, the director denied the petition. 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 would function at a senior level within the organization, specifically due to the conflicting
evidence regarding the subordinates of the beneficiary and their duties and job titles. The director noted that
the evidence submitted failed to definitely establish the organizational hierarchy of the petitioner and the
exact role of the beneficiary within that structure.
On motion, the petitioner submitted statements attesting to the current structure of the U.S. entity as of
October 2005. The petitioner asserted that the director's assertions were erroneous and urged reconsideration
SRC 05 171 51763
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of the denial. The director found that the arguments presented did not constitute new evidence and, therefore,
the motion was denied. On appeal, the petitioner contends that the director has not taken into consideration
the contractual obligations of the teachers and translators currently working for the petitioner. Specifically,
the petitioner asserts that the beneficiary never involved herself in day-to-day activities of the enterprise, nor
did she act as a first-line supervisor. Additional evidence was submitted in support of these contentions.
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 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).
In the letter dated May 18, 2005, the petitioner indicated that 55% of the beneficiary's time was devoted to
"important and essential duties," such as "oversee[ing] all aspects of the operation" and "develop[ing] and
maintain[ing] the vision of the Company." The remaining 45% of her time, according to the petitioner, was
devoted to "financial, administrative, and budgeting duties," defined as "all aspects of the Company's finance
(budget and accounts receivable) administration." While on the surface, these duties appear to be high level
tasks, the exact nature of the beneficiary's day-to-day role in the company remains unclear. For example,
while the petitioner contends by way of the description provided that the beneficiary is responsible for all
essential duties pertaining to the company, including financial management, it is unclear exactly what the
beneficiary does on an average work day. 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 answer a critical question in this case: What does the beneficiary primarily
do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros.
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
While high-level duties are identified in the description of duties, the actual duties performed by the
beneficiary on an average day are uncertain. Since no definitive information is provided in the record other
than the broad list of duties submitted in the petitioner's May 18, 2005 letter, the AAO cannot conclude that
the beneficiary is primarily engaged in high-level tasks. As stated above, whether the beneficiary is a
managerial or executive employee turns on whether the petitioner has sustained its burden of proving that her
duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here,
although the petitioner states that 55% of the beneficiary's duties revolve around "important and essential
duties" and the other 450/0 are devoted to financial duties, the petitioner fails to document what proportion of
the beneficiary's duties would be managerial functions and what proportion would be non-managerial.
Specifically, within the list of duties, the petitioner includes both managerial and administrative or operational
tasks, but fails to quantify the time the beneficiary spends on them. This failure of documentation is
important because several of the beneficiary's tasks, such as "entering into and negotiating contracts,"
"overseeing customer service," and "forecasting funding needs for staffing, materials and supplies" do not fall
directly under traditional managerial duties as defined in the statute. As the petitioner fails to document what
portion of the beneficiary's duties would be managerial functions and what would be non-managerial, the
SRC 05 171 51763
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AAO cannot determine whether the beneficiary is primarily performing the duties of a function manager. See
IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Furthermore, there are numerous discrepancies in the record with regard to the organizational structure and
staffing of the U.S. entity. With the initial petition, the petitioner submitted its quarterly tax return for the
quarter ending March 31, 2005. The document indicated that as of March 31, 2005, the petitioner employed
the beneficiary, the center director, and the head of the translation department. However, the organizational
chart submitted indicated that the petitioner employed a total of eight employees under the petitioner, namely,
three department heads, a sales representative, and three teachers/translators. When asked for additional
documentation to support its claims, the petition submitted documentation including Forms W-9 for various
contractors, a selection of checks, and its most recent quarterly tax return. The quarterly return for the quarter
ending June 30, 2005 indicated that the petitioner employed five persons during that quarter, namely, the
beneficiary, the center director, the head of the translation department, and two teachers not listed on the
organizational chart submitted with the initial petition.' Pursuant 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 petitioner correctly observes that a company's size alone, without taking into account the reasonable
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or
executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, 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). 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 matter, confusion arose as to whether the petitioner employed a subordinate staff to relieve the
beneficiary from performing non-qualifying duties. Specifically, the petitioner claims to be a language
institute offering instruction and translation services. While the response to the request for evidence indicated
that a number of contractors had filled out tax paperwork, the payroll and quarterly tax information did not
support the petitioner's claim that it employed a staff of eleven employees and contractors.
! The AAO notes that the director incorrectly states in the denial that the petitioner employed only two
persons for the second quarter of 2005. It appears that the director viewed only the first page of the quarterly
return, since it is clearly indicated on page 2 that three additional employees were on the petitioner's payroll
at that time.
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For example, two of the alleged department heads, namely, and are not listed as
employees and did_. es from the petitioner in 2005. Although the petitioner submits copies of
checks made out t or a total of $300 in the month of February 2005, this is not sufficient to
show that he is a fii -time con ractor heading up a department. For example, the petitioner's documentation
of the work schedule for this person indicates that he is employed from 9:00 a.m. to 7:00 p.m. from Monday
thru Friday, with a two-hour break between 3:00 p.m. and 7:00 p.m. However, the only evidence of
compensation paid to _ is two checks for $150 each in the month~2005. No other
documentation evidencing compensation paid to him was sub~_is also identified
as a department head with a full-time work schedule identical to_. He, too, is omitted from the
petitioner's quarterly tax return, and no checks evidencing compensation to him are included in the record.
The petitioner contends that the submission of Forms W-4 and W-9 for these and other persons it claims to be
contractors prove that the petitioner has a fully-staffed operation with multiple full-time employees. The
AAO disagrees. Any such forms presented by a petitioner must be accompanied by other evidence to show
that these employees have commenced work activities. These forms verify, at best, that the business has
made an effort to complete relevant tax withholding documentation; they do not verify that those individuals
have actually begun working or that they have been providing services to the petitioner. See Matter ofHo, 22
I&N Dec. 206, 212 (Assoc. Comm. 1998). In the absence of such evidence as pay stubs, payroll records, or
paychecks, the petitioner has not established that the petitioner employs a subordinate staff that would relieve
the beneficiary from performing non-qualifying duties.
The petitioner asserts on appeal that the staffing of the organization has since grown, and that the beneficiary
is now supported by a large subordinate staff to relieve her from performing the tasks necessary to generate
the services of the petitioner. To establish that the petitioner has staffed the new operation, however, the
petitioner must submit a description of staffing, including the number of employees and the types of positions,
as well as evidence of the wages paid to the employees. 8 C.F.R. § 214.2(l)(14)(ii)(D). The record indicates
that at the time of filing, the only employees who were on its payroll were the beneficiary, the center director,
and the head of the translation department. The organizational chart sub which
listed_nd _as full-time department heads and , and
_as part-time teachers/translators~orted by the petitioner's quarterly returns.
W~oner did submit copies of checks to_two checks for $1,400 in January 2005) and
to _ (one check for $250 in February 2005, there is no evidence, independent from the petitioner's
own assertions, that these persons were receiving compensation from the petitioner at the time of the
petition's filing in June 2005. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
This post-June 2005 evidence, however, is not acceptable to establish eligibility in this matter. The regulation
at 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 CIS regulations that allows
for an extension of this one-year period. In this matter, the petitioner has submitted numerous invoices
evidencing the provision of language instruction and/or translation services; however, it has failed to show
that it employed a sufficient staff to relieve the beneficiary from providing such services herself. An
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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 ofChurch Scientology International,
19 I&N Dec. 593, 604 (Comm. 1988).
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, it is clear by the lack of payroll records that, at the time of filing, the beneficiary was not
supported by a sufficient staff to relieve her from primarily performing language instruction, translation
services, or other non-qualifying duties. Based on the evidence presented, therefore, 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.
In addition, the petitioner indicates that the beneficiary is the sole owner of both companies. Specifically, the
petitioner claims that the beneficiary owns 100% of the foreign entity, which in tum claims to own 100% of
the U.S. petitioner. 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 she will be
transferred to an assignment abroad upon completion of her services in the United States.
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), aff'd. 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).
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
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.