dismissed L-1A Case: Medical Equipment

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U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: EAC 06 007 52788 Office: VERMONT SERVICE CENTER Date: APR 0 5Z007
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.
--' r .....~
-------_ .
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 007 52788
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 dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its executive director as
an L-IA 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, a Virginia corporation, states that it is
engaged in the import and export of medical equipment. It claims to be a subsidiary of All Well (Private) Ltd.,
located in Pakistan. The beneficiary was initially granted L-l A status in February 2001 in order to open a
new office in the United States, and was subsequently granted two extensions of stay. The petitioner now
seeks to extend the beneficiary's status for an additional two-year period.
The director denied the petition on January 6, 2006, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
On appeal, counsel for the petitioner asserts that the director erred by denying the petition based on a lack of
business growth, noting that the company's slow growth can be attributed to the beneficiary's "unknown"
immigration status as a result of U.S. Citizenship and Immigration Services' (USCIS) loss of his initial L-l A
extension file. Counsel asserts that the director did not consider the beneficiary's position in the context of the
current stage of development of the U.S. company. Finally, counsel emphasizes that the petitioner is currently
showing a profit , and contends that the beneficiary's position is "clearly executive" in nature.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically , within three years preceding the beneficiary's application for admission into the United States , a
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the
beneficiary for one continuous year. Furthermore , the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial , executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) 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)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive , managerial , or specialized
knowledge capacity , including a detailed description of the services to be performed .
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition .
(iv) Evidence that the alien 's prior year of employment abroad was in a position that was
managerial , executive or involved specialized knowledge and that the alien's prior
EAC 06 007 52788
Page 3
education, trammg, 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 sole issue addressed by the director is whether the petitioner established that 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.
The nonimmigrant petition was filed on October 12, 2005. On Form 1-129, the petitioner indicated that it
intended to employ the beneficiary as the executive director of its one-person company. The petitioner
EAC 06 007 52788
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indicated that the beneficiary "will continue to direct and develop the investment in the United States. He will
also formulate the business policies, develop, plan and organize the business."
In a letter dated October 5, 2005, the petitioner emphasized that much of the beneficiary's stay in the United
States "has been with uncertain immigration status, which has restricted [the bene.ficiary's] ability to expand
[his] company to any significant degree." The evidence in the record shows that the beneficiary was initially
granted a period ofL-IA classification valid from February 15,2001 until February 15,2002 in order to open
a new office in the United States (EAC 01 097 50290). The beneficiary was granted an L-I visa at the U.S.
Consulate in Islamabad, Pakistan on April 3, 2001, but, for reasons that have not been adequately explained,
was first admitted to the United states in L-IA status more than six months later, on October 22,2001. He has
remained in the United States since that time.
The petitioner filed a timely petition for an extension of the beneficiary's status on or about January 29, 2002
(EAC 02 097 54374). Unfortunately, the petition was subsequently lost by USCIS, and ultimately approved
on June 1, 2004, with validity dates of February 15, 2002 through February 15, 2004. As noted by the
petitioner, the validity period of the petition had already expired at the time the petition was approved. The
petitioner filed another petition for an extension of the beneficiary's L-IA status on August 2, 2004 (EAC 04
224 53838). The petition was approved on August 9, 2004, with validity dates of February 16, 2004 through
February 15, 2006. The petitioner emphasized that between January 2002 and August 2004, the beneficiary
was unable to travel outside of the country, and was unable to "prove to creditors or business contacts that
[the petitioner] was a legitimate business entity in the United States."
The petitioner noted that the beneficiary is solely responsible for all decision-making for the U.S. company,
and discussed the business activities undertaken by the beneficiary since his admission to the United States,
which are currently focused on the import and sale of textiles. The beneficiary, writing on behalf of the
petitioner, further states:
My goal within the next year, is to hire a manager and three marketing/sales people. The
manager will be responsible for handling all future shipments, maintain inventory and sales
network control, communicate with all exporters and manage the sales network in my
absence. This would free me to participate in delegations arranged under the supervision of
the U.S. Department of Commerce. The marketing/sales people would cover the Philadelphia,
Delaware and Baltimore areas.
Additionally, I plan to pursue U.S. products distributorship agreements with famous
American manufacturers, especially in the medical and chemical fields. The export of U.S.
products is a priority. Additionally, I plan to obtain distributorships from foreign companies
for medical products. . . . I expect to import non sterile gauze swabs/pad/sponges to repack
and sterilize in the United States and supply to local hospitals at very competitive rates.
I am hopeful that 2006 will be the turning point in our business and that [the petitioner] will
hire the necessary employees and earn a healthy profit as well. I feel my company has made
EAC 06 007 52788
Page 5
significant strides despite the restrictions caused by the uncertainty of my status for almost
three years.
On October 24, 2005, the director issued a request for additional evidence to establish that the beneficiary
would be employed in a managerial or executive capacity under the extended petition, including: (1) a
complete position description for all of the petitioner's employees in the United States, including one for the
beneficiary's position, along with a breakdown detailing the number of hours devoted to each of the
employees' job duties on a weekly basis; (2) copies of IRS Forms W-2 issued in 2004; (3) copies of IRS
Forms 941, Employer's Quarterly Federal Tax Returns, for the second and third quarters of 2005; (4) an
organizational chart for the U.S. company; and (5) if applicable, evidence documenting the petitioner's use of
contractors.
In a response dated December 23, 2005, the beneficiary, writing on behalf of the petitioner, submitted the
following additional information regarding his duties as executive director of the U.S. company:
I spend a minimum of 50 hours per week on the job. I establish the company goals, policies
and set the pace for its expansion. I also manage the day to day operations of the company.
The business dealings I am establishing are setting the foundation for [the petitioner's]
growth. My duties include servicing customer accounts, developing new accounts, product
procurement, shipping, inland freight forwarding, and the development of marketing
opportunities. I am the only employee at the present (no W-2 issued to date). However, this
will change in 2006.
I have worked diligently to make up for lost time due to the uncertainty of my immigration
status for a large portion of my time in the United States. As noted above, I set the goals for
the company, which includes its expansion to 3 employees in addition to myself for 2006.
Soon the contacts/contracts I have made will permit [the petitioner] to hire sales
representatives for the Philadelphia, Delaware and Baltimore areas. I will train these
individuals regarding our business development and sales techniques and manage that portion
of the business as well. Since I am currently the only employee, there is no organizational
chart to provide at this time. However, the projected organizational chart will include my
position, administrative assistant, a secretary, and three sales representative positions.
The beneficiary went on to discuss the petitioner's current and prospective sales contracts, noting that the
company has started importing textile products to the United States. The beneficiary concluded: "If I am
granted an extension for the next 2 years I shall be able to make a sizable profit for the company, pay regular
taxes, hire employees and manage a good volume of trading business too."
In a cover letter dated December 23, 2005, submitted in response to the director's request for evidence,
counsel for the petitioner emphasized that due to the beneficiary's uncertain immigration status, he "could not
travel abroad or be deemed 'business worthy' for client companies to pursue transactions. Since obtaining his
status in 'real time,' [the beneficiary] has taken significant steps to establish the company in Pennsylvania."
EAC 06007 52788
Page 6
The director denied the petition on January 6, 2006, concluding that the petitioner failed to establish that he
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director fully acknowledged the petitioner's arguments that the company's progress was slowed by the
beneficiary's "uncertain" immigration status, but noted that the most recent two-year extension, valid from
February 2004 to February 2006, was granted to compensate the petitioner for any difficulties resulting from
USCIS's mishandling of the initial extension request, and to allow the petitioner additional time to establish
the United States office. The director further stated: "[A]t this juncture the beneficiary has remained in the
United States for a period of almost five years, for the past 16 months with knowledge of having L lA status
that was valid, but it is not evident that there does exist an actual United States company that has employees
who can relieve the beneficiary from performing the duties of the daily operation of the United States
company." The director noted that, including the initial new office petition, the beneficiary has had at least
two years in L-IA status that were fully available for the establishment and growth of the U.S. company.
The director noted that the beneficiary, as the only employee of the U.S. company, is necessarily required to
perform a number of duties that are not executive or managerial in nature, and which are normally performed
by lower-level employees. The director concluded that the beneficiary would not be supervising and
controlling the work of supervisory, professional, or managerial employees, managing an essential function of
the organization, or directing the management of the organization, and therefore would not be employed in a
primarily managerial or executive capacity.
On appeal, counsel for the petitioner asserts that the director erred in concluding that the beneficiary will not
be employed in a managerial or executive capacity, and again emphasizes that "the absence of legal status was
a serious impediment" to the growth of the U.S. company. Counsel states that the beneficiary's position "is
clearly executive," and contends that the director failed to consider the beneficiary's position in the context of
the current stage of development of the U.S. company, noting that the "initial stunted growth of the company
(aided by uncertain immigration status) did not permit the hiring of additional employees." Counsel further
asserts that the evidence submitted demonstrated that the company has undergone "significant growth in the
past six months, including the hiring of a sales representative and sales receipts in excess of $20,000 from
September to December 2005." Counsel states that this growth is evidence of the beneficiary's executive
duties, and that "a short extension would have allowed him to realize corporate goals."
Counsel's assertions are not persuasive. Preliminarily, the AAO acknowledges counsel's contention that the
beneficiary should be granted additional time to establish the United States office due to the lengthy delay in
the adjudication of the petitioner's first request for an extension of his L-IA status, which, regrettably, took
nearly two and one half year to be processed by USCIS. Essentially, the petitioner and counsel are requesting
that uscrs take into consideration the company's future hiring plans and business prospects, as if the U.S.
company were a brand new office. The one-year "new office" provision is an accommodation for newly
established enterprises, provided for by uscrs regulation, that allows for a more lenient treatment of
managers or executives that are entering the United States to open a new office. When a new business is first
established and commences operations, the regulations recognize that a designated manager or executive
responsible for setting up operations will be engaged in a variety of low level activities not normally
performed by employees at the executive or managerial level and that often the full range of managerial
responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict
EAC 06 007 52788
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language of the statute, the "new office" regulations allow a newly established petitioner one year to develop
to a point that it can support the employment of an alien in a primarily managerial or executive position.
As discussed by the director, there is no justification for the application of a more lenient standard in the
instant matter. The beneficiary was granted a one-year approval in order to establish its new U.S. office in
February 2001. The record shows that the beneficiary obtained his L-l visa at a U.S. Consulate on April 3,
2001, but, inexplicably, did not enter the United States until October 22, 2001, more than eight months after
the petition was approved. While the beneficiary may have remained in "uncertain" status between the
months of February 2002 and August 2004, when the most recent extension was granted, the petitioner has
not adequately explained how the delay in the adjudication of the extension request prohibited the U.S.
company from doing business. An L-IA petition deals solely with the entry and employment authorization of
one non-U.S. worker and does not decide a corporation's right to invest and do business in the United States.
If the petition had ultimately been denied, it would have meant that the company could not employ the
beneficiary under the requested nonimmigrant classification. The petitioner was not prohibited from doing
business in the United States or from hiring any U.S. citizen or permanent resident at will.
The L-l A nonimmigrant visa is not an entrepreneurial visa classification that would allow an alien a
prolonged stay in the United States in a non-managerial or non-executive capacity to start up a new business.
By granting two extensions to the petitioner, USCIS has already made more than sufficient accommodations
for any harm caused by the delay in the adjudication of the petitioner's first extension request. The
beneficiary's most recent extension was granted in August 2004, and therefore he has had more than one full
year to develop the business to the point where it would support a primarily managerial or executive position.
Accordingly, the AAO will not take into consideration the petitioner's future hiring plans or business
prospects in determining whether the beneficiary will be employed in an executive or managerial capacity
under the extended petition. The petitioner must establish eligibility at the time of filing the nonimmigrant
visa petition. A visa petition may not be approved based on speculation of future eligibility or after the
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17
I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971).
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. 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. 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 show 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).
Although the petitioner indicates that the beneficiary establishes the U.S. company's goals and policies and
manages the day-to-day operations of the company, the petitioner also states that the beneficiary's duties
include "servicing customer accounts, developing new accounts, product procurement, shipping, inland
EAC 06 007 52788
Page 8
freight forwarding, and the development of market opportunities." The supporting documents submitted by
the petitioner, including invoices, purchase orders and electronic mail correspondence, confirm that the
beneficiary is solely responsible for taking orders from U.S. customers, locating overseas suppliers, and
making all the necessary arrangements to ensure that the products are manufactured according to specification
and timely delivered. Thus he is directly performing the company's sales, marketing, procurement, shipping,
and distribution functions, rather than supervising the performance of these non-qualifying tasks through a
subordinate staff of employees or contractors. These are the daily operational tasks inherent to operating as
an import and wholesale distribution company, and do not fall under the statutory definitions of managerial or
executive capacity. The actual duties themselves 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. CiI. 1990). An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of
Church Scientology Int'/., 19 I&N Dec. 593, 604 (Comm. 1988).
By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive
or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The fact that the
beneficiary owns and manages a business does not necessarily establish eligibility for classification as an
intracompany transferee in a managerial or executive capacity within the meaning of sections 101(a)(15)(L)
of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Therefore, while the beneficiary in this matter
evidently exercises discretion over the U.S. business as its owner, manager, and sole employee, the petitioner
must still establish that he is not primarily involved in performing the company's day-to-day operations. The
petitioner has not met this burden.
Although requested by the director, the petitioner declined to provide a breakdown of how the beneficiary's
time is allocated among his various responsibilities. The petitioner lists the beneficiary's duties as including
both managerial and operational tasks, but fails to quantify the time the beneficiary spends on them. This
failure of documentation is important because the majority of the beneficiary's daily tasks, as discussed above,
do not fall directly under traditional managerial duties as defined in the statute. For this reason, the AAO
cannot determine whether the beneficiary is primarily performing managerial or executive duties. See, e.g.,
IKEA US, Inc. v. U.s. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). Failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. §
103.2(b)(14).
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining
the claimed managerial capacity of a beneficiary, including the petitioner's organizational structure, the duties
of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from
performing operational duties, the nature of the petitioner's business, and any other factors that will contribute
to a complete understanding of a beneficiary's actual duties and role in a business. An analysis of the totality
of the record in this case leads to the reasonable conclusion that the beneficiary's non-managerial duties
associated with the petitioner's sales, marketing, procurement, shipping, and distribution functions, along with
routine administrative tasks, would require substantially more of his time than any managerial or executive
duties he performs. Where an individual is primarily performing the tasks necessary to produce a product or
EAC 06 007 52788
Page 9
to provide a service or other non-managerial tasks, that individual cannot also primarily perform managerial
or executive duties.
On appeal, counsel suggests that the director did not consider the current stage of development of the
company in considering the beneficiary's position and current job duties. Counsel's assertion is not persuasive.
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable
needs of the organization, in light of the overall purpose and stage of development of the organization. To
establish that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development.
Here, the petitioner did provide an explanation as to why the petitioner had not been staffed during its first
five years of operations. The director acknowledged the petitioner's arguments, and explained in great detail
why the petitioner's arguments were not persuasive, and why the petitioner would no longer be considered a
"start up" enterprise for the purposes of determining the beneficiary's employment capacity. As discussed
above, the AAO concurs with the director's assessment with respect to the petitioner's current stage of
development. Notwithstanding the beneficiary's period of "uncertain" immigration status between 2002 and
2004, the petitioner has not explained how the reasonable needs of the petitioning enterprise justify the
beneficiary's performance of primarily non-managerial or non-executive duties as of October 2005, when the
instant petition was filed.
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be
"primarily" employed in a managerial or executive capacity as required by the statute. See' sections
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify
a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent,
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying
duties.
Counsel claims for the first time on appeal that the petitioner hired a sales representative within "the past six
months." The petitioner has submitted no evidence to corroborate this statement. When replying to the
director's request for evidence, the beneficiary unequivocally stated that he was the sole employee of the
company as of December 23, 2005. Therefore, if the petitioner did in fact hire an employee, it did so
subsequent to the director's decision. 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). For the same reason, the petitioner's stated intention to hire three employees during 2006 will
not be considered.
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in
a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be
dismissed.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
EAC 06 007 52788
Page 10
ORDER: The appeal is dismissed.