dismissed L-1A Case: Mining Equipment

PlBLICCOPY
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: EAC 07 077 52413 Office: VERMONT SERVICE CENTER Date: FEB 2 8 2D08
IN RE: 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)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R'O~hief
Administrative Appeals Office
www.uscis.gov
EAC 07 077 52413
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its sales manager 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 is a corporation organized under the laws
of the State of Florida and is allegedly in the mining products and equipment business. The beneficiary was
previously granted two two-year periods of stay, and the petitioner now seeks to extend the beneficiary's stay
for two additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of a manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(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.
(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 himlher 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.
EAC 07 077 52413
Page 3
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101(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 10l(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 petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act, although counsel on appeal appears to limit the beneficiary to the managerial classification. Given
the lack of clarity, the AAO will assume that the petitioner is claiming that the beneficiary will be employed
as either an executive or a manager and will consider both classifications.
The petitioner describes the beneficiary's duties in an undated letter appended to the Form 1-129 as follows:
EAC 07 077 52413
Page 4
1. Directs and coordinates activities involving sales of mining equipment;
2. Directs, coordinates and reviews activities in sales accounting and record keeping
and receiving and shipping operations;
3. Analyzes marketing potential and expenditures to formulate policy;
4. Reviews operational records and reports to project sales and determine profitability;
5. Confers with potential customers regarding equipment needs and advises customers
on types of equipments to purchase;
6. Resolves customer complaints regarding sales and services;
7. Directs product research and development[.]
Based on [the beneficiary's] unsurpassed experience and knowledge in this field, he will
exercise the authority in regard to hiring, firing, delegation of assignments according to
capabilities, preferences and technical goals, discipline, promotions and remuneration. He
will conduct performance reviews and ensure that his staff follows the corporate procedures.
The petitioner also asserts that, although the beneficiary has been "the only Sales Department personnel, [the
petitioner] has decided to implement a growth initiative." According to the petitioner, these future employees
will report to the beneficiary.
Finally, although the petitioner asserts that the beneficiary "has been employed as the Sales Manager for [the
petitioner]" from July 2003 until the present, the petitioner's 2005 Form 1120S, U.S. Income Tax Return for
an S Corporation, reports no salaries and wages for that year other than $43,000.00 in officer compensation.
The record does not indicate that the beneficiary has been or is a corporate officer.
On February 6, 2007, the director requested additional evidence. The director requested, inter alia, a more
detailed job description for the beneficiary, complete position descriptions for all employees, evidence
documenting the number of contractors utilized and the duties performed, and copies of the petitioner's 2006
quarterly tax returns.
In response, counsel submitted a letter dated March 6, 2007 in which she further describes the beneficiary's
duties as follows:
Please note that [the beneficiary] has supervisory responsibility for the key function of the
company's Sales Department, as described in previously submitted Petitioner's Letter in
Support. [The beneficiary] functions at a senior level within [the petitioner's] hierarchy.
Please see the company's documents bearing [the beneficiary's] name. [The beneficiary]
manages an essential function within the organization, in particular within the Sales and
Marketing Department. [The beneficiary] does not directly manage a subordinate staff of
professional personnel, due to the fact that [the petitioner] uses contractors rather than
employees to perform the company's functions. Please see attached invoices for the
subcontractors' services along with descriptions of the companies and work performed. [The
beneficiary] plans, organizes, directs, and controls the company's major functions and works
through the subcontractors to achieve the company's goals. In his position, [the beneficiary]
uses his independent discretion and authority over the day-to-day operations of the Sales and
EAC 07 07752413
Page 5
Marketing Division of [the petitioner].
The petitioner also submitted its federal and state quarterly tax returns. While these reports consistently list
four employees, the beneficiary does not appear on any of the reports. Therefore, it does not appear as if the
beneficiary has been, or presently is, an employee of the petitioner. The petitioner also did not describe the
duties of the four employees listed in the wage reports or list the names and duties of the claimed contractors
through which the beneficiary allegedly manages the petitioner's sales and marketing division.
On March 22, 2007, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager.
Upon review, counsel's assertions are not persuasive.
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
will be either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of
the position entail executive responsibilities, while other duties are managerial. A petitioner may not claim
that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two
statutory definitions.
As a threshold issue, it must be noted that a petitioner's future hiring plans will not establish that a beneficiary
will be employed in a primarily executive or managerial capacity. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N
Dec. 45, 49 (Comm. 1971). The petitioner must establish eligibility at the time of filing the nonimmigrant
visa petition. Matter of Michelin Tire Corp., 17 I&N Dec. 248. Therefore, the petitioner's assertion that it
plans to hire a subordinate staff in the future that will be supervised or managed by the beneficiary is not
relevant.
In view of the above, the petitioner's description of the beneficiary's job duties fails to establish that the
beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has
submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary
will do on a day-to-day basis. For example, the petitioner states that the beneficiary manages the marketing
and sales function through the use of independent contractors. However, the record is devoid of evidence
describing these contractors and fails to clearly explain how, exactly, these contractors relieve the beneficiary
of the need to perform the non-qualifying tasks inherent to the sales and marketing duties ascribed to him.
Furthermore, broad, non-specific duties such as "plans, organizes, directs, and controls the company's major
functions" and" [d]irects and coordinates activities involving sales of mining equipment" are not probative of
the beneficiary actually performing qualifying duties, especially in the absence of any evidence establishing
that a subordinate staff is available to be directed and coordinated. The fact that the petitioner has given the
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated
EAC 07 077 52413
Page 6
job duties does not establish that the beneficiary will actually perform managerial or executive duties.
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir.
1990). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972).
Likewise, the duties ascribed to the beneficiary appear to be non-qualifying administrative or operational
tasks which will not rise to the level of being managerial or executive in nature. For example, the petitioner
asserts that the beneficiary devotes his time primarily to sales and marketing tasks, e.g., dealing with
customers, analyzing data, and product research. However, these duties are non-qualifying administrative or.
operational tasks, and the petitioner has not explained how the beneficiary will be relieved of the need to
perform these tasks. Therefore, it has not been established that he will be "primarily" employed as a manager
or an executive. An employee who "primarily" performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As asserted in the record, the beneficiary will directly supervise independent contractors. However, as these
workers are neither specifically identified nor described even though this evidence was specifically requested
by the director, the petitioner has failed to establish that he will supervise any subordinates. Once again,
going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. 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). Regardless, the supervision of independent contractors will not qualify a beneficiary
as a managerial employee. The Act is quite clear that only the management of employees may be considered
a qualifying managerial duty for purposes of this visa classification. See section 101(a)(44)(A)(ii) of the Act.
Furthermore, the petitioner has failed to establish that the beneficiary will manage an essential function of the
organization. The term "function manager" applies generally when a beneficiary does not supervise or
control the work of a subordinate staff but instead is primarily responsible for managing an "essential
function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to
the function.
EAC 07 077 52413
Page 7
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function.
The petitioner's vague job description fails to document that the beneficiary's duties will be primarily
managerial. As explained above, the record establishes that the beneficiary will primarily perform non­
qualifying operational or administrative sales and marketing tasks. Consequently, the record indicates that the
beneficiary will perform the function rather than manage the function. Absent a clear and credible breakdown
of the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his
duties will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a
function manager. See IKEA US, Inc. v. Us. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
capacity.
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will primarily perform the tasks necessary to
produce a product or to provide a service. Therefore, the petitioner has not established that the beneficiary
will be employed primarily in an executive capacity.
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed
that Citizenship and Immigration Services (CIS) "may properly consider an organization's small size as one
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. Us.
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 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 ofa
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, the petition contains serious inconsistencies regarding its staffing. For example, the petitioner
asserts in the undated letter appended to the Form 1-129 that the beneficiary "has been employed as the Sales
EAC 07 077 52413
Page 8
Manager for [the petitioner]" from July 2003 until the present. However, both the petitioner's 2005 Form
1120S, U.S. Income Tax Return for an S Corporation, and the petitioner's 2006 federal and state quarterly tax
returns indicate that no employee compensation was paid to the beneficiary in those years. The petitioner
does not attempt to resolve this serious and fundamental inconsistency in the record. Overall, the record is
devoid of any credible evidence establishing that the beneficiary has been or will be a bona fide employee of
the petitioner. 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.
582, 591-92 (BIA 1988). 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.
Id. at 591.
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or
executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. §§
214.2(l)(3)(iii), (iv), and (v)(B).
In this matter, the record is devoid of evidence establishing that the beneficiary was employed abroad by a
qualifying organization and, if he was, that this emploYment was managerial or executive in nature. The
petitioner failed to specifically describe the beneficiary's job duties abroad. Specifics are clearly an important
indication of whether a beneficiary's duties were primarily executive or managerial in nature; otherwise
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., L,td. v. Sava,
724 F. Supp. 1103, afj'd, 905 F.2d 41. Once again, going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of
Treasure Craft of California, 14 I&N Dec. 190. Furthermore, the petitioner failed to describe the duties of
the beneficiary's purported subordinates abroad, if any. Absent detailed descriptions of the duties of both the
beneficiary and his purported subordinates, it is impossible for CIS to discern whether the beneficiary was
"primarily" engaged in performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B)
of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or
executive capacity for one continuous year in the three years preceding the filing of the petition, and the
petition may not be approved for this reason.
The previous approvals of L-IA petitions do not preclude CIS from denying an extension based on a
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent
petition. See section 291 of the Act, 8 U.S.C. § 1361.
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
EAC 07 077 52413
Page 9
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
Finally, given that it appears that the beneficiary ceased being a bona fide "employee" of the petitioner as
early as 2005, a review of the prior L-1 nonimmigrant petitions approved on behalf of the beneficiary is
warranted to determine whether they should be revoked in accordance with 8 C.F.R. § 214.2(1)(9)(iii)(2).
ORDER:
FURTHER ORDERED:
The appeal is dismissed.
The director shall review the prior L-1 nonimmigrant petitions approved on
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. §
214.2(1)(9).