dismissed L-1A Case: Marketing And Communication

identifying data deleted to
prevent clearly unwarranted
invasion of personal privacy
PUBLICCOPYi
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: EAC 05 25452941 Office: VERMONT SERVICE CENTER JJ\Ll. n s rypfFDate: .~ V Q LJ1,-, I
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.
fl -11 /J •
t't~fJ~
YRobert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
• •. .••••.• • II.
EAC 05 25452941
Page 2
DISCUSSION: The Director, Vermont 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 summarily
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)(l5)(L). The petitioner is a Virginia corporation, and claims
rketing and communication services. The petitioner states that it is the subsidiary of
located in Korea. 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 on November 4, 2005 , 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 director stated that the United States entity does not appear to have sufficient subordinate managers
or professionals, and thus the beneficiary will be carrying out the day-to-day operations of the U.S . entity
rather then supervising subordinate employees who would relieve the beneficiary from primarily
performing non-qualifying duties.
On the Form I-290B, the petitioner asserts the following:
Petitioner contends that the Vermont Service Center erred in concluding that the
"company's proposed structure does not appear to support the assertion that the
beneficiary's duties will be strictly of an executive nature" and that "the United States
employs too few employees to elevate the beneficiary's position to one ofL-1A caliber."
It has been established that the size of the enterprise itself is not determinative of whether
a position is "executive" in nature, but rather that all elements outlined in the applicable
regulations should be considered in adjudicating an L-1A petition (See Fujie Ohata
Memorandum dated Dec. 20, 2002). It appears the adjudicator in this case confused the
executive and managerial prongs of the L-1A category, as indicated by the repeated
attempt to categorize the Beneficiary as a "first-line supervisor" which has been
established as a barrier to the "managerial" prong, but not "executive" prong of the
regulations. Petitioner contends that he presented sufficient evidence that his job duties
in both the U.S. and Korea are "executive" in nature, and are consistent with the
applicable regulations and precedent decisions pertaining to this category.
The petitioner did not submit a brief or documentation in support of the appeal. Counsel indicated on
Form I-290B that he would submit a brief and/or evidence to the AAO within 30 days . As no additional
evidence has been incorporated into the record , the AAO contacted counsel by facsimile on December 7,
2006, to request that counsel acknowledge whether the brief and/or evidence were subsequently
submitted, and, if applicable, to afford counsel an opportunity to re-submit the documents. Counsel for
the petitioner did not respond to the AAO. Accordingly , the record will be considered complete.
To establish eligibility under section 101(a)(l5)(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
EAC 05 254 52941
Page 3
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.
Upon review, the AAO concurs with the director's decision and will affirm the denial of the petition.
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the
part of the director, are simply insufficient to overcome the well founded and logical conclusions the
director reached based on the evidence submitted by the petitioner. Without documentary evidence to
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,
534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N
Dec. 503, 506 (BIA 1980).
Despite counsel's brief statement on appeal, based on the minimal documentation in the record, it cannot
be determined that the beneficiary will be employed in a managerial or executive capacity. 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 of
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
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).
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states
that the beneficiary's duties include "adopt all company financial, marketing and product development
with final decision-making power;" and "develops policies and procedures for operational processes in
order to ensure optimization and compliance with established standards and regulations." 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), aff'd, 905 F.2d 41 (2d. Cir. 1990).
The description also includes several non-qualifying duties such as "in charge of developing the new
company in the U.S., including development of client bases and sales activities;" "negotiate and
compromise claims made by customers concerning products produced by the Petitioner;" "and "set up
and follow-up on annual marketing goals for the Petitioner." It appears that the beneficiary will be
directly performing a number of marketing and operational tasks involved in expanding the petitioner's
business operations rather then directing such activities through subordinate employees. An employee
who "primarily" performs the tasks necessary 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
EAC 05 25452941
Page 4
the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also
Matter ofChurch Scientology International, 19 1& N Dec. 593,604 (Comm. 1988).
The petitioner indicated on the Form 1-129 that the company has five employees. In addition, the
petitioner submitted in its response to the director's request for evidence, an organizational chart of the
United States entity which indicated that the U.S. entity is headed by the beneficiary as president who
supervises a managing director, who in tum supervises a marketing director, a sales manager and an
administrative secretary. The petitioner also submitted the petitioner's quarterly tax return for the second
quarter of 2005, which indicated that the company paid $27,000 in wages for the three-month period for
five employees. In addition, in reviewing the wages of each employee for this three month period, it
appears that the marketing director was paid $500 in wages, the sales manager was paid $500.00 in wages
and the administrative secretary was paid $2000.00 in wages. It appears that these salaries are not
consistent with a salary for a full-time employee. Without further documentation, it appears that the
marketing director, sales manager and the administrative secretary were employed on a part-time basis. 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).
Counsel correctly observes that a company's size alone, may not be the determining factor in denying a
visa to a multinational manager or executive. 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, 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 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. 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 petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial
or executive position.
Furthermore, 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.
At the time of filing, the petitioner claimed to have a gross annual income of $550,000. The company
employed the beneficiary as president, plus one managing director, one marketing director, one sales
manager and one administrative secretary. However, as discussed above, it appears that the only full-time
employees at the U.S. entity are the beneficiary and the managing director. In addition, four of the
EAC 05 254 52941
Page 5
petitioner's five employees have managerial job titles, and, as noted by the director, there is a significant
amount of overlap between the claimed duties of the beneficiary, the managing director, and the
marketing director. The petitioner did not submit evidence that it employed any subordinate staff
members who would perform the actual day-to-day, non-managerial operations of the company. Based
on the petitioner's representations, it does not appear that the reasonable needs of the petitioning company
might plausibly be met by the services of the beneficiary as president, three managers, and a
clerical/administrative employee, several of whom appear to be employed on a part-time basis. The
petitioner claims to be engaged in the provision of "marketing communications services," and the
company's invoices show that the company bills its client for "market research and planning," "drawings,"
and "services." Based on the petitioner's representations, none of its employees are actually engaged in
providing services to the company's client, and the job descriptions submitted must therefore be given
limited weight. The petitioner also submitted a copy of its Federal Fish and Wildlife Permit indicating
that the company is authorized to import/export wildlife and/or wildlife roducts and evidence that the
company advertises its services under the name " The petitioner
provided no explanation regarding this evidence and has not fully described the nature of its business
activities in the United States, which further prohibits a determination as to whether the company's
reasonable needs could be met by the current staffing structure. Again, 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. at 165. Doubt cast on any aspect of the petitioner's proof
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered
in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in
the context of reviewing the claimed managerial or executive duties. The petitioner must still establish
that the beneficiary is to be employed in the United States in a primarily managerial or executive capacity,
pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not
established this essential element of eligibility.
Finally, on appeal, counsel for the petitioner asserts that the beneficiary will perform in an executive
capacity. If the position offered to the beneficiary is executive in 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, 8 U.S.C. § 1101(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 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. 593, 604 (Comm. 1988). In the instant matter, the petitioner has not
established evidence that the beneficiary is in an executive capacity with the U.S. entity.
EAC 05 254 52941
Page 6
Beyond the decision of the director, the petitioner failed to provide sufficient evidence to establish that a
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8
C.F.R. § 214.2(1). In the instant petition, the petitioner claims that the U.S. entity is 100% owned and
controlled by the foreign parent company.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not
sufficient evidence to determine whether a stockholder maintains ownership and c~ate
entity. The petitioner submitted one stock certificate, number two, indicating that _.is
the owner of 51,000 shares of stock for the U.S. entity. The petitioner did not submit stock certificate
number one and did not explain why this certificate was not included in the record. Furthermore, the
articles of incorporation for the U.S. entity indicate that the beneficiary is the owner of 10,000 shares of
stock. Therefore, it does not appear that the foreign company is the sole owner of the U.S. entity. It is
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. at 591­
92. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of
relevant annual shareholder meetings must also be examined to determine the total number of shares
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its
effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to
the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any
other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra.
Without full disclosure of all relevant documents, CIS is unable to determine the elements of ownership
and control. For this additional reason, the petitioner cannot be approved.
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).
Regulations at 8 C.F.R. § 103.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
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. Inasmuch as the petitioner has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not
sustained that burden. Therefore, the appeal will be summarily dismissed.
ORDER: The appeal is summarily dismissed.