dismissed L-1A Case: Prefabricated Homes Manufacturing

·dentifyingdatadeletedto
~revent clearly unwl!~\
invasionofpersona'pnv~
u.s.Departmentof Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 13851151 Office: TEXAS SERVICE CENTER Date: SEP 12 2007
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.
~P. Wiemann, cf)
<\)dministrative Appeals Office
www.uscis.gov
SRC 05 138 51151
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 employ the beneficiary in the position of president
to open a new office in the United States as an L-l A nonimmigrant intracompany transferee pursuant to
section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The
petitioner, a corporation organized under the laws of the State of Texas, claims to be a manufacturer of
prefabricated homes. I
The director denied the petition concluding that the petitioner failed to demonstrate (1) that the beneficiary
was employed full-time abroad by a qualifying organization for one continuous year; or (2) that the petitioner,
within one year of the approval of the petition, will support an executive or managerial position, specifically
because the petitioner failed to establish that a sufficient investment had been made in the United States
operation .
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 asserts that, despite assertions in the record
that the beneficiary was "self employed" abroad, the petitioner established that the foreign employer's control
over the beneficiary created an employee-employer relationship. Counsel further asserts that, because the
regulations require neither that an investment be made in the United States entity before the approval of the
petition nor directly by the foreign employer, the petitioner sufficiently established the size of the United
States investment and that the intended United States operation, within one year, will support an executive or
managerial position.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Section 101(a)(15)(L) states in pertinent part as follows:
[A]n alien who, within 3 years preceding the time of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or other
legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States
temporarily in order to continue to render his services to the same employer or a subsidiary or
affiliate thereof in a capacity that is managerial, executive, or involves specialized
knowledge[.]
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:
lIt should be noted that, according to Texas state corporate records, the petitioner's corporate status in Texas is
not in good standing. Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the
company can no longer be considered a legal entity in the United States. Therefore, if the instant appeal were
not being dismissed for the reasons set forth herein , this would call into question the petitioner's continued
eligibility for the benefit sought.
SRC 05 138 51151
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(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
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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defmed in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its fmancial goals;
(2) The size of the United States investment and the fmancial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
SRC 05 138 51151
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The first issue in this proceeding is whether the petitioner has established that the beneficiary was employed
full-time abroad by a qualifying organization for one continuous year within the three years preceding the
filing of the petition.
In this matter, the petitioner asserts that the beneficiary was employed as a "logistics manager" by an Israeli
sole proprietorship from March 2001 until May 2003. In support of its assertion, the petitioner submitted a
letter dated March 31, 2005 from the foreign organization identifying these dates of employment.
On May 19, 2005, the director requested additional evidence. The director requested, inter alia, evidence of
the beneficiary's overseas experience and a list of the beneficiary's day-to-day job duties with the overseas
employer.
In response, the petitioner provided translated "salary stubs" which indicate that the beneficiary was paid for
services in March 2001, April 2001, April 2003, and May 2003. All four of these stubs indicate that the
beneficiary started working for the foreign organization in March 2001. However, the petitioner did not
submit salary stubs, or any proof of employment, for those months between April 2001 and April 2003.
The petitioner also submitted a letter from the foreign organization dated July 21, 2005, which reiterates that
the beneficiary was employed "from March 2001 until May 2003" and also states, in pertinent part, the
following:
[The beneficiary] was [the foreign organization's] representative to oversee the work of the
constructors, secured the completion of all agreements made between us and brought the
construction to its fruition according to the planes [sic] on file.
[The beneficiary] held the responsibility to immediately notify the constructors and [the
foreign employer] about any obstacles or problems that arose between the parties.
[The beneficiary] worked as a self employed constructor and received payment according to
the job completion of the projects he supervised.
On June 8, 2006, the director denied the petition. The director determined that the petitioner failed to
establish that the beneficiary was employed full-time abroad by a qualifying organization for one continuous
year.
On appeal, counsel asserts that, despite assertions in the record that the beneficiary was "self employed"
abroad, the petitioner established that the foreign employer's "control" over the beneficiary created an
employee-employer relationship for purposes of this visa classification. Counsel argues that, in the record,
the beneficiary is repeatedly referred to as an "employee" of the foreign organization. Counsel further argues
that "control," and thus employment, is evidenced by the foreign organization's purported "transfer" of the
beneficiary to the United States as well as the salary stubs' indication that taxes were withheld and that the
beneficiary was given an "employee number." Finally, counsel asserts that the beneficiary's duties abroad,
SRC 05 138 51151
PageS
such as acting as the foreign organization's "representative," are further indicia of "control" thus establishing
an employee/employer relationship.
Upon review , the petitioner's assertions are not persuasive.
In this matter, the record does not establish that the beneficiary was employed full-time abroad by a
qualifying organization for one continuous year within the three years preceding the filing of the petition.
First, as a threshold issue, the petitioner has not established that the beneficiary was engaged for the required
one-year period in any capacity as either an independent contractor or an employee. The director specifically
requested that the petitioner submit payroll evidence establishing the beneficiary's purported periods of
employment abroad. However, in response, the petitioner submitted evidence of two two-month long stints of
"employment" with the foreign organization separated by almost two years. This evidence does not establish
full-time employment for one continuous year. To the contrary, this evidence establishes, at most, four
months of possible employment over a two-year period. Furthermore, 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).
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 of California, 14 I&N Dec. 190 (Reg. Comm . 1972)). Therefore , for this reason alone , the
petition may not be approved.
Second, as correctly determined by the director, the record indicates that the beneficiary was "self employed"
when performing services for the foreign organization and that he was paid "according to the job completion
.of the projects he supervised ." Therefore, the beneficiary was not an "employee" of the foreign entity. It is
noted that "employer," "employee," and "employed" are not specifically defmed for purposes of the Act even
though these terms are used repeatedly in the context of addressing the L-1 classification. Section 101(a)(15)(L),
8 U.S.C. § 1101(a)(15)(L), requires beneficiaries to have been "employed" abroad and to render services to the
same "employer" in the United States. Section 203(b)(1)(C) , 8 U.S.C. § 1153(b)(1)(C), which addresses
multinational executive and manager immigrant petitions , contains similar provisions. Further, section
101(a)(44), 8 U.S.C. § 1101(a)(44), defines both managerial and executive capacity as an assignment within an
organization in which an "employee" performs certain enumerated qualifying duties . Finally, the specific
defmition of "managerial capacity" in section 101(a)(44)(A), 8 U.S.C. § 110I(a)(44)(A), refers repeatedly to the
supervision and control of other "employees." Neither the legacy Immigration and Naturalization Service nor
Citizenship and Immigration Services (CIS) has defined the terms "employee," "employer," or "employed" by
regulation for purposes of the L-I classification. See, e.g., 8 C.F.R. § 204.5 and 8 C.F.R. § 214.2(1).
Therefore, for purposes of the L-l classification, these terms are undefined.
The Supreme Court of the United States has determined that where a federal statute fails to clearly define the
term "employee," courts should conclude "that Congress intended to describe the conventional master-servant
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503
U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non-Violence v. Reid, 490
U.S. 730 (1989). That definition is as follows:
SRC 05 138 51151
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In determining whether a hired party is an employee under the general common law of
agency, we consider the hiring party's right to control the manner and means by which the
product is accomplished. Among the other factors relevant to this inquiry are the skill
required; the source of the instrumentalities and tools; the location of the work; the duration
of the relationship between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's discretion over when and
how long to work; the method of payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the tax treatment of the
hired party.
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency § 220(2) (1958); Clackamas
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common­
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of the
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503
U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254, 258 (1968).2
While the legacy Immigration and Naturalization Service (INS) has in the past considered the issue of
employment in the context of L-1A intracompany transferee petitions, this decision, which predates the
Supreme Court's Darden decision by over a decade, can be distinguished from the present matter. In Matter
of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980) (hereinafter Aphrodite), the INS
Commissioner addressed whether a petitioner may seek to classify a beneficiary as an intracompany
transferee even though the beneficiary was a part owner of the foreign entity and, apparently, not an
2While the Darden court considered only the definition of "employee" under the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly indicates
legislative intent to extend the definition beyond the traditional common law definition." See, e.g., Bowers v.
Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2 0d Cir. 1994), cert.
denied, 513 U.S. 1000 (1994). However, in the case of the above-cited sections of the Immigration and
Nationality Act, there is no indication that Congress intended for the undefined terms "employer" or
"employed" to have a broader application than that of the corresponding undefined term "employee."
Therefore, in the absence of an intent by Congress to impose broader definitions, the "conventional master­
servant relationship as understood by common-law agency doctrine," and the Darden statutory construction
test, apply to the terms "employee," "employer," and "employed" as used in 8 C.F.R. § 214.2(1), 8 U.S.C. §
1101(a)(15)(L), 8 U.S.C. § 1101(a)(44); and 8 U.S.C. § 1 153(b)(1)(C). That being said, there are instances in
the Act where Congress may have intended a more defined application of the term "employer" than what is
encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of the Act, 8
U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the
employment of unauthorized aliens).
SRC 05 138 51151
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"employee" of either the foreign entity or the petitioner. The district director and regional commissioner had
determined that the beneficiary could not be classified as an intracompany transferee because "he is 'an
entrepreneur, a speculative investor, and not an employee of an international company.'" 17 I&N Dec. at 530.
Relying on Matter ofM--, 8 I&N Dec. 24 (BIA 1958), the Commissioner disagreed, declined to require that
intracompany transferees be "employees," and specifically noted that the word "employee" is not used in
section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). 17 I&N Dec. at 531. The Commissioner further reasoned
that adopting the word "employee" would exclude "some of the very people that the statute intends to benefit:
executives" and noted that the Webster's New Collegiate Dictionary did not define "employee" to include
"executives." ld.
However, the 1980 Aphrodite decision, while otherwise sound, predates both the 1990 codification of the
definitions of "managerial capacity" and "executive capacity" in 8 U.S.C. § 1101(a)(44), Pub. L. No. 101-649,
§ 123, 104 Stat. 4978, § 123 (1990), and the Supreme Court's decision in Darden. As the definitions of both
"managerial capacity" and "executive capacity" now clearly use the word "employee" in describing
intracompany transferee managers and executives, the Commissioner's decision in Aphrodite declining to
impose an employment requirement upon intracompany transferees, while correct at the time, ceased being a
valid approach to determining an alien's eligibility for L-l classification in 1990. 3 Furthermore, given that
Congress did not define the term "employee" in codifying the definitions of "managerial capacity" and
"executive capacity," the Supreme Court instructs that one should conclude "that Congress intended to
describe the conventional master-servant relationship as understood by common-law agency doctrine."
Darden, 503 U.S. at 322-323. Therefore, while the Aphrodite decision remains instructive as to whether a
petitioner may seek L-l classification for a beneficiary having a substantial ownership interest in the
organization, the determination that an intracompany transferee employed in an executive capacity need not
be an "employee" has been superceded by statute. Intracompany transferees, by definition, must now be
"employees" in order to be eligible for L-l classification.
Therefore, in considering whether or not one is an "employee" or an "employer," CIS will focus on the
common-law touchstone of control. Clackamas, 538 U.S. at 450. Factors indicating that a worker is an
"employee" of an "employer" are clearly delineated in both the Darden and Clackamas decisions. 503 U.S. at
323-324; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when,
where, and how a worker performs the job; the continuity of the worker's relationship with the employer; the
tax treatment of the worker; the provision of employee benefits; and whether the work performed by the
worker is part of the employer's regular business. See Clackamas, 538 U.S. at 448-449; cf New Compliance
Manual, Equal Employment Opportunity Commission, § 2-III(A)(l), (EEOC 2006) (adopting a materially
identical test and indicating that said test was based on the Darden decision).
3 The INS adopted regulations substantially similar to the definitions of "managerial capacity" and "executive
capacity" ultimately codified in 1990 at 8 U.S.C. § 1101(a)(44). See 8 C.F.R. §§ 214.2(l)(I)(ii)(B)-(C); 52
F.R. 5738-01 (Feb. 26, 1987). These regulations, which also require that L-l managers and executives be
employees, were generally upheld as consistent with the Act even prior to the 1990 codification of these
definitions. See National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472 (5
th
Cir. 1989). Therefore, an
employment requirement was arguably imposed upon managers and executives seeking L-l classification as
early as 1987.
SRC 05 138 51151
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It is important to note that the factors listed in Darden and Clackamas are not exhaustive and must be
evaluated on a case-by-case basis. Other aspects of the relationship between the parties may affect the
determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority
of the listed criteria need be met; however, the fact finder must weigh and compare a combination of the
factors in analyzing the facts of each individual case . The determination must be based on all of the
circumstances in the relationship between the parties, regardless of whether the parties refer to it as an
employee or as an independent contractor relationship. See Clackamas, 538 U.S. at 448-449; New
Compliance Manual at § 2-III(A)(1).
In this matter, the record is devoid of evidence of "control" over the beneficiary by the foreign entity or any
other indicia of the "conventional master-servant relationship as understood by common-law agency
doctrine." The petitioner's self-serving statements that the beneficiary was an "employee" are not probative of
an employer-employee relationship . See Clackamas , 538 U.S. at 448-449. Likewise, the duties described do
not establish that the foreign organization "controlled" the beneficiary's provision of services as a logistics
manager. To the contrary, the fact that the beneficiary was paid according to the completion of projects and
that he was obligated to report "problems" or "obstacles" implies that the beneficiary worked quite
independently and was paid to perform a specific service. As explained above, being paid according to the
"agreed cost of performing a particular job" is a key factor in determining whether a worker is an employee or
an independent contractor. There is also no evidence that the foreign employer could assign "additional
projects" to the beneficiary or that it controlled the hours of work and the duration of the job. Importantly, it
also appears, given the beneficiary's independence and skill set, that he was engaged in a distinct occupation
as a "self employed constructor." Again, these are all key elements of control, which need to be considered.
Finally, the petitioner offers no evidence regarding the significance of the withholding of taxes or the
assignment of an employee number in Israel. While such factors could be indicia of control of an employee,
in immigration proceedings, the law of a foreign country is a question of fact which must be proven if the
petitioner relies on it to establish eligibility for an immigration benefit, Matter of Annang, 14 I&N Dec. 502
(BIA 1973). Regardless, the withholding of taxes or the placement of a worker on a payroll will not alone
establish that the worker was an "employee" when weighed against competing factors undermining this
purported "control." Again, going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
To summarize, using the set of criteria listed above, the petitioner has not established that the beneficiary and
the foreign employer had a "conventional master-servant relationship as understood by common-law agency
doctrine." The petitioner has not demonstrated that there were enough factors of "control" present to establish
that the beneficiary was an "employee" of the foreign employer. Moreover, when those competing factors
which indicate that the beneficiary was actually an independent contractor or service provider are weighed
against the indicia of "control," it is clear that the beneficiary was more likely than not an independent
contractor abroad.
Accordingly , the petitioner has not established that the beneficiary was employed full-time abroad by a
qualifying organization for one continuous year within the three years preceding the filing of the petition, and
the petition may not be approved for this reason .
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The second issue in this matter is whether the petitioner established that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position. Specifically, the
issue is whether the petitioner has established that a sufficient investment has been made in the United States
operation as required by 8 C.F.R. § 214.2(l)(3)(v)(C)(2).
In support of its petition, the petitioner did not describe an investment in the United States operation. On May
19, 2005, the director requested, inter alia, evidence of the transfer of funds to the petitioner by the foreign
entity. In response, counsel submitted a letter dated February 1, 2006 in which he states that "[t]he foreign
entity has not been able to transfer funds to the beneficiary due to the pending approval of the L-l A for the
one year period." The petitioner also submitted a letter dated February 1, 2006 in which it states that the
foreign entity will transfer funds to it "as soon as approval [of the L-IA petition] is received." Finally, the
petitioner submitted a business plan which indicates that $12,000.00 of "start-up money" will be contributed
by the owner of the foreign organization and $30,000.00 will be contributed by the beneficiary. The rest of
the petitioner's financing will allegedly come from a series of loans.
On June 8, 2006, the director denied the petition. The director determined that the petitioner failed to
establish that the United States operation, within one year of the approval of the petition, will supportan
executive or managerial position because the petitioner failed to establish that a sufficient investment had
been made in the United States operation. The director concluded that, because the proposed investment had
not been made and because the sources of the investment did not include the foreign organization, the
petitioner failed to satisfy this criterion.
On appeal, counsel asserts that, because the regulations require neither that an investment be made in the
United States entity before the approval of the petition nor directly by the foreign employer, the petitioner has
sufficiently established the size of the United States investment and that the intended United States operation,
within one year, will support an executive or managerial position.
Upon review, the petitioner's assertions are not persuasive.
When a new business is 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 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 order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
In this matter, the petitioner admits that it has not received any of the "start up money" from abroad and that
this investment is contingent upon the approval of the instant petition. Therefore, as of the date the petition
was filed, no investment had been made in the United States operation. Counsel's argument that this
SRC 05 13851151
Page 10
investment need not be made at the time the petition is filed is without merit. 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 of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Absent any investment in the United States operation at the
time the petition was filed, the petitioner has not demonstrated that the enterprise will likely succeed and
rapidly expand as it moves away from the developmental stage. Therefore, the petition may not be approved
for this reason.
Furthermore, the petitioner has not established that it has been approved for any of the loans identified in the
business plan which will make up the bulk of its financing. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. at 165. 4
Accordingly, the petitioner failed to establish that the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position because a sufficient investment had not
been made in the United States operation as required by 8 C.F.R. § 214.2(l)(3)(v)(C)(2).
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary's purported
employment abroad was primarily executive or managerial in nature as required by 8 C.F.R. §
214.2(l)(3)(v)(B).
Section lOl(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
4It is noted that the director also determined that, because the source of the proposed investment of "start up
money" would be the owner of the foreign organization (a sole proprietorship), the petitioner failed to satisfy
the criterion in 8 C.F.R. § 214.2(l)(3)(v)(C)(2). However, a sole proprietorship is not a legal entity apart from
its owner or owners. See Matter of United Investment Group, 19 I&N Dec. 248 (Comm, 1984). Therefore, to
the extent the director denied the petition based on the owner of the foreign sole proprietorship being the
source of some of the "start-up money" and not the foreign organization itself, this determination is
withdrawn. Nevertheless, for the reasons set forth above, as the petitioner has failed to establish that a
sufficient investment has been made in the United States operation, the director properly denied the petition
on this basis.
SRC 05 13851151
Page 11
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. § 1l01(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 whether the beneficiary is claiming to have been primarily engaged in
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section
101(a)(44)(B) of the Act. A beneficiary may not claim to have been employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions . If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
In this matter, the petitioner asserts that the beneficiary was employed abroad as a "logistics manager." His
purported duties were described in a letter from the foreign organization dated July 21, 2005 as follows:
[The beneficiary] served as a supervisor for construction of single unit apartments built by
[the foreign organization].
[The beneficiary] was [the foreign organization's] representative to oversee the work
of the
constructors, secured the completion of all agreements made between us and brought the
construction to its fruition according to the planes [sic] on file.
[The beneficiary] held the responsibility to immediately notify the constructors and [the
foreign employer] about any obstacles or problems that arose between the parties.
SRC 05 138 51151
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The petitioner also submitted an organizational chart for the foreign organization which shows the beneficiary
supervising eight subordinate workers.
In view of the above, the record does not establish that the beneficiary was employed abroad in a primarily
executive or managerial capacity. In support of its petition, the petitioner provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day-to-day basis
other than oversee construction projects. The fact that the petitioner has given the beneficiary a managerial
title and has prepared a vague job description which includes inflated job duties does not establish that the
beneficiary was actually performing managerial 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).
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart, the beneficiary allegedly managed eight people in their construction of
apartments. None of the subordinate workers is described as having supervisory or managerial duties.
Moreover, as the petitioner did not provide detailed job descriptions for the subordinate workers, it is
impossible to determine whether any of the workers could be classified as a professional. Therefore, the
record indicates that the beneficiary was a first-line supervisor. A managerial 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. at 604.
Therefore, the petitioner has not established that the beneficiary was employed primarily in a managerial
capacity.
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within an
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 was acting primarily in an executive capacity. The job description provided for
the beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
Moreover, as explained above, the record indicates that the beneficiary worked as a first-line supervisor.
Finally, the organizational chart for the foreign organization indicates that the "owner" likely directed the
organization and not the beneficiary. Therefore, the petitioner has not established that the beneficiary was
employed primarily in an executive capacity.
SRC 05 13851151
Page 13
Accordingly, the petitioner did not establish that the beneficiary had been employed abroad in an executive or
managerial capacity as required by 8 C.F.R. § 214.2(l)(3)(v)(B), and for this additional reason the petition
may not be approved.
Beyond the decision of the director, the petitioner has not established that sufficient physical premises to
house the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
In support of its assertion that it has secured sufficient physical premises to house the United States operation,
the petitioner submitted a copy of a lease dated April 4, 2005. However, the beneficiary is the lessee, not the
petitioner. Moreover, as the lease prohibits assignment and subletting by the lessee without the lessor's
consent in paragraph 6, and the record is devoid of any evidence of the lessor having given consent, the
petitioner may not occupy the premises. Therefore, the petitioner has not secured sufficient physical
premises, and the petition may not be approved for this additional reason.
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), aff'd, 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 is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.