dismissed L-1A Case: Plastics Trading

u.s.Department of Homeland Security
20 Mass. Ave, N.W. Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 06 13652621
INRE: Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: JUN 052007
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)
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.
~_._.~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 13652621
Page 2
DISCUSSION: The Director, Texas 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 petition seeking to extend the employment of the beneficiary as its vice
president of marketing as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L)
of the Immigration and Nationality Act (the ~S.C. § 1101(a)(l5)(L). The petitioner, a Texas
corporation, claims to be the subsidiary of _ Trading and Manufacturing Limited Liability
Company ('_, located in Ho Chi Minh City, Vietnam, and claims to be engaged in the purchase
and sale of raw material plastics. 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 for an additional
three years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been
and will continue to be employed in the United States in a primarily managerial or executive capacity.
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the
director misapplied the regulations and claims that the denial was not based on legal requirements.
Specifically, counsel for the petitioner contends that the director erroneously required the beneficiary, who
was allegedly functioning in an executive capacity, to meet the regulatory requirements of a managerial
employee by denying the petition based on her lack of a subordinate staff of professionals. In support of these
contentions, counsel for the petitioner submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(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 (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.
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(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 regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(1)(ii)(G) of this section;
(b) Evidence that the United States entity has been doing business as defined m
paragraph (l)(l)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a management or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a
primarily executive capacity. 1
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
1 Although Citizenship and Immigration Services (CIS) normally considers the beneficiary's duties for
eligibility under the definitions of both managerial and executive capacity, counsel here asserts that the
beneficiary's duties are primarily executive in nature, and that CIS erred by examining the beneficiary's
duties for eligibility under managerial capacity. Since counsel insists that the proper analysis would be one
solely devoted to executive capacity, the AAO will adhere to counsel's request.
SRC 06 13652621
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(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In the initial petition, counsel submitted a letter from the U.S. petitioner, dated March 17, 2006, outlining the
beneficiary's duties while employed in the United States. The petitioner claimed that as Vice President of
Marketing, the beneficiary was currently negotiating a deal to purchase a warehouse for the petitioner, which
would permit greater expansion of the business. It further claimed that after the petitioner's purchasing agent
made initial contact with suppliers, the beneficiary would research and review the product specifications and
quality prior to entering into agreements for their purchase. The petitioner further described her duties as
follows:
[The beneficiary] oversees and directs staff in the processing of [ ]raw materials. She
determines the amount and kind of products that will need to be prepared for shipment to
meet customer needs. She sets the schedules for production and shipment of the product.
She also sets the price for each item depending on her assessment of its quality and demand
for the product.
On April 3, 2006, the director requested additional evidence pertaining to the nature of the U.S. business.
Specifically, an organizational chart showing all employees of the petitioner, as well as their job titles, duties,
and educational backgrounds was requested. The petitioner's quarterly report showing wages paid to staff
members was likewise requested, as well as a statement regarding how the beneficiary refrains from engaging
in day-to-day tasks. Finally, the director requested evidence establishing that the beneficiary managed a
subordinate staff of professionals. In a response dated May 6, 2003, the petitioner submitted a response with
the requested documentation. The documentation submitted included a letter from the petitioner dated April
23, 2006, which provided additional details regarding the beneficiary's position. Specifically, the petitioner
stated:
[The beneficiary] is our Vice President of Marketing. She has 10+ years of experience in the
plastics industry. [The beneficiary] researches current and future needs for our primary
customers. She determines [the petitioner's] purchasing needs based on this research. Then,
she sets price levels to be employed during purchasing negotiations. She also sets quality and
MFI (melt flow index) requirements fo~ructs to be purchased. She directs our
Acquisitions Manager/Purchasing Agent,_, regarding amount of product, quality of
product, and desired purchase price for the products. [The beneficiary] exercises her
independent judgment regarding which quality and pricing of the product and to which
customers such products should be marketed. [The beneficiary] sets guidelines and
requirements for receipt of raw materials at the Warehouse. [The beneficiary] is
knowledgeable of the Customs requirements when shipping products to Vietnam. Therefore,
she sets policies related to the processing and packing of the recycled plastics to insure
successful processing by Vietnam customs and also to avoid expensive taxes and penalties.
[The beneficiary] established product processing and packing goals based upon anticipated
SRC 06 13652621
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customer needs. She sets pricing for recycled materials based upon product quality and
demand.
Additionally, an organizational chart indicated that the petitioner employed the beneficiary as vice president
and retained four other persons as independent contractors: a president; an acquisitions manager/purchasing
agent; a warehouse manager; and a warehouse laborer. The petitioner also indicated that it had a shipping
"department" which was contracted to a third party. Also submitted was the beneficiary's Form W-2 for
2005, as well as Forms 1099 for the other persons listed above.
On May 16, 2006, the director denied the petition. The director, who reviewed the record to determine
eligibility under both managerial and executive capacity, found that the beneficiary's stated duties had
satisfied neither. The director noted that the nature and structure of the business as currently functioning did
not appear to support the position of a bonafide manager or executive. In addition, the director noted that the
petitioner had not established that the beneficiary would exercise authority over subordinate employees or
manage an essential function or component of the organization.
On appeal, the petitioner asserts that the director's decision constituted an incorrect factual assumption by CIS
and that a detailed job statement outlining the beneficiary's duties was submitted in the petitioner's letters.
Counsel further alleged that CIS erred by considering the beneficiary for eligibility under managerial capacity
when it was clear that the petitioner was employing the beneficiary as an executive.
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 are either in an executive or managerial
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a
managerial or executive capacity.
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has
not demonstrated that the beneficiary will be employed in a primarily managerial or executive capacity.
Whether the beneficiary is a manager or executive employee turns on whether the petitioner has sustained its
burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B)
of the Act. Here, the petitioner claims that the beneficiary's duties are exclusively executive, yet the
identified duties of the beneficiary in the record include non-executive tasks. For example, the petitioner
states that the beneficiary will "sets the price for each item" and "negotiate contracts." Such duties are not
included in the definition of executive capacity, which counsel so strongly urges the AAO to consider. The
record contains no additional evidence or explanation with regard to how the duties of the beneficiary
supersede those of her co-workers, despite the director's specific request for evidence showing she was
relieved from performing non-qualifying tasks. Merely claiming that the beneficiary is an executive is
insufficient to establish eligibility in this matter. 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).
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In addition, the record indicates that the petitioner employs four independent contractors, including its
president. Ironically, however, counsel suggests that despite the fact that a president appears on the
organizational chart of the petitioner, the beneficiary is the only executive of the U.S. petitioner. There is
insufficient evidence in the record, however, to substantiate this claim. While this evidence establishes that
the U.S. entity indeed has other persons to perform required tasks, there is nothing in the record that would
allow the AAO to infer that one of the persons can substitute for the beneficiary when it comes to performing
non-qualifying tasks, such as inspecting potential plastics and setting prices. Without documentary evidence
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 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).
Without supporting evidence, the AAO cannot determine whether the beneficiary is performing client-related
services which constitute the company's routine day-to-day operations, or whether she is primarily
performing the duties of a bona fide executive. The AAO notes that the description of the beneficiary's duties
places a large amount of first-hand responsibility on the beneficiary in terms of active participation in product
acquisition, which indicates that she is directly involved in sales and marketing. If the beneficiary is engaged
in client-related services, it must be noted that an employee who primarily performs the tasks necessary to
produce a product or to provide services is not considered to be employed in a managerial or executive
capacity. Matter ofChurch Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
The fact that an individual manages a small business and has many important responsibilities does not
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive
capacity within the meaning of section 101(a)(44) of the Act. The record does not establish that a majority of
the beneficiary's duties will be primarily dedicated to directing the management of the organization. The
petitioner has not demonstrated that it has reached or will reach a level of organizational complexity wherein
the hiring/firing of personnel, discretionary decision-making, and setting company goals and policies
constitutes significant components of the duties performed on a day-to-day basis. Instead, the record
demonstrates that the beneficiary plays an active role in the marketing and expansion of the petitioner's
fledgling business, which are not considered managerial or executive duties as defined by the Act. The
regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States 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. Based on the evidence furnished, it cannot be
found that the beneficiary will be employed primarily in a qualifying managerial or executive capacity. For
this reason, the petition may not be approved.
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas
company employed the beneficiary in a primarily managerial capacity, as required by 8 C.F.R.
§214.2(l)(3)(iv). In the petitioner's letter of support dated March 17, 2006, the petitioner briefly states that
for the "past years," the beneficiary has served as Vice President of Marketing. The petitioner does not
articulate whether this title applied to the beneficiary's overseas employment, or whether it exclusively
applied to the beneficiary's position in the United States. In addition, it is noted that Question 6 on the L
Supplement to Form 1-129, which asked for a description of the beneficiary's duties for the past three years,
simply states "See Attached."
...... .-
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Consequently, the AAO is unable to determine whether the beneficiary was employed in a managerial or
executive capacity during her employment with the foreign entity. While the beneficiary is not required to
serve in the same position abroad as in the United States, the fact remains that the evidence as it stands is
insufficient to accurately determine if she was employed abroad as Vice President of Marketing, or whether
she held a different position with different duties. The AAO further notes that the organizational chart for the
foreign entity does not list "Vice President of Marketing" as a position, nor is the beneficiary identified on the
chart. 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)(l4).
Nevertheless, in the event that the beneficiary occupied the same position abroad as described above, the
AAO would determine, for the same reasons outlined above, that the beneficiary had not been employed in a
primarily managerial or executive capacity while employed with the foreign entity. For this additional
reason, the petition may not be approved.
Another issue not addressed by the director is whether the petiti~ foreign entity maintain a
qualifying relationship. The petitioner claims to be the subsidiary of_Trading and Manufacturing
Limited Liability Company (short name: _), by virtue of its 52% ownership of the petitioner. The
petitioner, however, has submitted insufficient evidence to demonstrate that this relationship exists. In
foreign entity's ownership of the petitioner, the record contains a stock certificate issued to
. Also submitted are the petitioner's Articles of Incorporation.
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of
possession of the assets of an entity with full power and authority to control; control means the direct or
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter
of Church Scientology International, 19 I&N Dec. at 595.
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 control of a corporate entity. 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. This is particularly relevant in this case, because the stock certificate, issued to
differs from the name of the foreign entity, which is h Trading and Manufacturing Limited Liability
Company. 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).
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Furthermore, the omission of the stock ledger, minutes of shareholders' meetings, and proof of the monies
rendered in exchange for ownership interests in the petitioner raise questions regarding the validity of the
relationship. 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). If CIS fails to believe that a fact stated in the petition is
true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 876
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988);
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
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 petition may not be approved.
Finally, Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner
has been engaged in the regular, systematic, and continuous provision of goods and/or services in the United
States for the entire year prior to filing the petition to extend the beneficiary's status. For example, despite the
incorporation of the petitioner in February 2005, the petitioner did not obtain a commercial lease until June 1,
2005. In addition, despite submitting photographic samples of the plastics materials allegedly produced by
the petitioner, the invoices submitted are primarily from 2006, and many were submitted in response to the
request for evidence issued by the director. 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).
Pursuant to the regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(B), the petitioner is expected to submit evidence that
it has been doing business since the date of the approval of the initial petition. In the instant case, there is no
evidence that the petitioner was doing business for the entire year prior to the extension request. For this
additional reason the petition may not 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).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. 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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
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sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.