dismissed L-1A Case: Manufacturing

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PUBLICCOPV
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
. FILE: SRC 06 126 52343 Office: TEXAS SERVICE CENTER Date: MAR 2 7 2001
INRE: Petitioner:
Beneficiary:
PETITION: 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
SRC 06 126 52343
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative"AppealsOffice (AAO) on appeal. The appeal will be dismissed.
The petitioner, a Florida limited liability company, claims to be engaged in the manufacturing and
wholesale of wire mesh for the construction industry. The petitioner states that it is an affiliate of
Estiradora Mexicana de Alambres SAMI, S.A. de C.V., located in Mexico. Accordingly, the United
States entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a
nonimmigrant intracompany transferee (L-IA) 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 seeks to employ the beneficiary as
its automotive and production manager for a two-year period.
The director denied the petition on June 17, 2006, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company.
Counsel for the petitioner filed the instant appeal on July 19,2006. On appeal, counsel for the petitioner
states that it is evident that the adjudicator did not examine the original petition or the response for
additional evidence. Counsel states that the petition is not an L-l extension of a new office petition,
instead the petition is for a standard L-l extension. Counsel also asserts that the beneficiary is indeed
employed in an executive and managerial position. Finally, counsel states that the U.S. entity has hired
the services of a "professional employer organization" that is in charge of "paying, on behalf of the
petitioner, employee benefits, payroll and workers' compensation." Counsel submits a brief and
documentation in support of the appeal.
To establish eligibility under section 101(a)(15XL) 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 regulationat 8 C.F.R § 214.2(1)(3)fwther states that an individual petition filed on Form 1-129shall be
accompaniedby:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifyingorganizations as defined in paragraph (1)(l)(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.
SRC 0612652343
Page 3
(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 same work which the alien performed abroad.
The AAO withdraws the director's statements in her decision dated June 17, 2006, in which she states
that the instant petition is an extension of a new office petition and will be analyzed pursuant to the
regulations of 8 C.F.R. § 214.2(1)(14)(ii). The beneficiary was granted L-IA classification in order to
enter the United States and work for an office that was already established. Therefore, this petition will
be decided as an L-IA extension pursuant to 8 C.F.R. § 214.2(1)(1)(14)(i).
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 in the United States.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 ofthe organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fITe 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), provides:
The term "executive capacity" means 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;
SRC 06 12652343
Page 4
(ii) establishes the goals and policies ofthe 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 nonimmigrant petition was filed on March 15,2006. The Form 1-129 indicates that the beneficiary will
be employed in the position of automotive and production manager for the petitioner, which claimed to have
approximately 21 employees. In a support letter dated March 8, 2006, the beneficiary's proposed duties in
the u.s.are described as the following:
• Provide direct supervision to nonexempt employees (i.e., technicians);
• .Responsible for planning of work flow;
• Develop procedures for processes & products;
• Provide direction to employees according to established policies and management
guidance;
• Complete failure analysis and recommends process improvements;
• Manage purchasing function as it relates to inventory control, vendor choice, deliveries,
pricing; responsible for cost control initiatives;
• Responsible for accuracy of floor stock;
• Provide back up support to the International Operations Officer/CEO;
• Selects, develops and evaluates personnel to ensure the efficient operation of the
function;
• Identify process improvements and leads improvement implementation projects;
• Perform manufacturing time studies.
• Maintain the production and test equipment;
• Establish and maintain preventive maintenance programs and procedures;
• Schedules manufacturing activities;
In addition, the petitioner submitted an organizational chart of the U.S. entity. The chart indicates that the
international operations officer and CEO, and the human resources manager will supervise the beneficiary as
automotive and product manager. The chart also indicates that the international operation officer and CEO
will supervise the sales manager, who in tum supervises the logistics and shipment manager. The chart has a
second page with two columns: the first column includes a machinery supervisor, a technician, two auxiliar
mesh employees, a mechanical employee, a bright employee, a design manager, two wire drawing
employees, and one crane/internal operation employee. The second column includes a manufacturing
supervisor, a superintendent mesh employee, two auxiliar mesh employees, and one mesh employee. The
chart also has a third page with two cleaning employees, one maintenance employee and one maintenance
auxiliar employee. The chart is not clear as to which employees, if any, are supervised by the beneficiary.
In addition, the petitioner submitted invoices from Crum Staffing IT issued to the U.S. entity indicating a list
of individuals and their salaries and wages for the periods from September 2005 until February 2006.
SRC 0612652343
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On April 19,2006, the director detennined that the petitioner did not submit sufficient evidence to process
the petition. The director requested that the petitioner submit: (1) evidence of the U.S. petitioner's state
quarterly wage reports indicating payroll taxes being paid for the first quarter of 2006; (2) copies ofFonn 941
indicating federal employment taxes reported and paid for the first quarter of 2006; and (3) a copy of the
beneficiary's Fonn W-2, Wage and Tax Statement, for 2005.
In a response to the director's request, dated June 14, 2006, the ~ a letter from.
~c. issued to the president of the U.S. entity, stating paid all applicable
employer taxes to the appropriate agencies in your behalf for the employees that are paid through
_ The letter also states tha s "licensed by the state as a Professional Employer
Organization and as a leased client, your information is filed on tax returns on a consolidated
bases, which is under federal identification number and if necessary the state identification
number."
In addition, the petitioner submitted a document from or the U.S. entity entitled "Quarterly
Payroll Report," for the quarter ended on March 31, 2006. The document lists individuals, including the
beneficiary, and their wages and salaries for the quarter ended on March 31, 2006. The petitioner also
submitted Fonn W-2 for 2005 issued to the beneficiary fro~
The petitioner also submitted its IRS Fonn 1065, U.S. Return of Partnership Income, for 2005, which shows
that the U.S. company paid salaries and wages of $174,200, and an additional $752,023 as "cost oflabar."
This figure appears on the petitioner's 2005 Financial Statements and Accountants Report as "Direct-Labor­
leased employees."
The director denied the petition on June 17, 2006 on the ground that insufficient evidence was submitted
to demonstrate that the beneficiary will be employed in a primarily executive or managerial capacity by
the U.S. company. The director noted that the evidence submitted indicated that ~ndnot
the petitioner, in fact employs the claimed employees of the U.S. entity, inclu~ary. In
addition, the director stated that it appears that a majority of the beneficiary's time will be spent in
providing the services of the U.S. company, rather than supervising a subordinate staff who would
perfonn the non-qualifying tasks.
On appeal, counsel for the petitioner states that it is evident that the adjudicator did not examine the
original petition or the response for additional evidence. Counsel states that the petition is not an L-l
extension of a new office, instead the petitioner is for a standard L-l extension. Counsel also asserts that
the beneficiary is indeed employed in an executive and managerial position. Finally, counsel states that
the U.S. entity has hired the services of a "professional employer organization" that is in charge of
"paying, on behalf of the petitioner, employee benefits, payroll and workers' compensation." Counsel
submits a service agreement between nd the U.S. entity. The agreement is blank as to
the date it becomes effective. The agreement states that Crum Staffing II will lease employees to the U.S.
entity. The agreement was signed in February 2004.
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary will 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
SRC 0612652343
Page 6
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 managerialcapacity. Id.
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: "provide direction to employees according to established policies and management guidance"; ''manage
purchasing function as it relates to inventory control, vendor choice, deliveries, pricing; responsible for cost
control initiatives;" and "identify process improvements and leads improvement implementation projects."
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 (E.D.N.Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's
descriptions of the beneficiary's position do not identify the actual duties to be performed, such that they
could be classified as managerial or executive in nature.
The job description also includes several non-qualifying duties such as the beneficiary will be
"responsible for planning of work flow"; "complete failure analysis and recommends process
improvements"; "responsible for accuracy of floor stock"; "perform manufacturing time studies";
"maintain the production and test equipment"; "establish and maintain preventive maintenance programs
and procedures"; and "schedules manufacturing activities." It appears that the beneficiary will be
providing the services of the business rather then directing such activities through subordinate employees.
An employee who "primarily" performs the tasks neces'sary to produce a product or provide a service 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).
Based on the current record, the AAO is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non­
managerial administrative or operational duties. The petitioner's description of the beneficiary's job
duties does not establish what proportion of the beneficiary's duties are managerial in nature, and what
proportion are actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir.
1991).
In addition, the record contains several inconsistencies regarding the staffing of the U.S. entity. The Form
1-129 states that the U.S. entity employs approximately 21 employees. The petitioner submitted an
organizational chart of the U.S. entity which indicates 24 employees. In addition, in response to the
SRC 0612652343
Page 7
director's request for evidence, the petitioner submitted a document from for the U.S.
entity entitled "Quarterly Payroll Report," for the quarter ended March 31, 2006 which indicates salary and
wages paid to 29 leased employees utilized by the U.S. entity. In reviewing the organizational chart of the
U.S. entity, only eight employees out of 24 employees listed on the organizational chart are also listed on the
document entitled "quarterly payroll report." Thus, the petitioner has not confirmed that 16 employees listed
on the organizational chart are in fact employed by the U.S. entity. In addition, the documented entitled
"quarterly payroll report" lists several individuals that the petitioner has not indicated their job titles or job
duties. 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 of Ho, 19 I&N
Dec. 582, 591-92 (BIA 1988).
In addition, the organizational chart submitted by the petitioner is not clear as to whether the beneficiary
supervises any subordinate employees. In addition, the beneficiary's job description states that the
beneficiary will supervise technicians but the beneficimy has not explained how many technicians the
beneficiary will supervise or their duties. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm.1972».
As noted by the director, it appears that all of the individuals utilized by the U.S. entity are employed by
~dare independent contractors. The petitioner has not submitted job titles and job duties
for the individuals utilized by the U.S. entity and thus failed to explain how the services of the contracted
employees obviate the need for the beneficiary to primarily conduct the petitioner's business. Without
documentary evidence to support its statements, the petitioner does not meet its burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. at 165. Furthermore, the majority of the U.S. entity's staff,
including the beneficiary, are independent contractors and are not directly employed by the U.S entity as
required by the regulations under 8 C.F.R. § 214.2(l)(3Xii). The service agreement between
and the U.S. entity states that 'shall have sufficient authority so as to maintain a right of
direction and control over Leased Employees assigned to you, and shall retain authority to hire, terminate,
discipline and reassign Leased Employees." Although counsel asserts tha is responsible for
paying, on behalf of the petitioner, employee benefits, payroll and worker's compensation, the terms of the
service agreement suggest that __maintains a measure of control over the leased employees
beyond that of a mere service ~er, the petitioner's Form 1065 for 2005 indicates that the
company did in fact employ regular payroll employees, as the company paid salaries and wages in the
amount of $174,200. The petitioner has not explained why the beneficiary, who is claimed to be a senior
member of its staff, would not be paid as a regular payroll employee. If the beneficiary is not actually
employed by the U.S. entity, the petitioner may not file a petition for L-IA classification on behalf of the
beneficiary.
As discussed above, the beneficiary's job description included primarily non-qualifying duties associated
with the petitioner's day-to-day functions, and the petitioner has not identified nor submitted evidence of
sufficient employees within the petitioner's organization, subordinate to the beneficiary, who would
relieve the beneficiary from performing routine duties inherent to operating the business. The fact that
the beneficiary has been given a managerial job title and general oversight authority over a department
-----------------------------------------
SRC 0612652343
Page 8
within the business is insufficient to elevate his poSItIOn to that of an executive or manager as
contemplated by the governing statute and regulations.
Based upon the lack of a comprehensive job description, the beneficiary's apparent performance of many
non-managerial duties, and the lack of evidence of the company's staffing levels, it cannot be concluded
that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity. Therefore,
the appeal will be dismissed.
Counsel for the petitioner noted that CIS approved a petition that had been previously filed on behalf of
the beneficiary for the same position. The prior approval does not preclude CIS from denying an
extension of the original visa based on reassessment of petitioner's qualifications. Texas A&M Univ. v.
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals
that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593,
597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors
as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert.
denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248
F.3d 1139 (5thCir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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.