dismissed L-1A Case: Publishing

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PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
1
File: WAC 05 800 44232 Office: CALIFORNIA SERVICE CENTER Date: JUl 66 z007
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.
~
, , -
/./" ,...-------
.c-R ob ./. iemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 800 44232
Page 2
DISCUSSION: The Director, California 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 employ the beneficiary for a period of five
years as its art director as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L)
of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation
organized under the laws of the State of Arizona and is allegedly a publishing business. The petitioner claims
a qualifying relationship with a branch office in Lebanon.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States, or has been employed abroad, 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, the petitioner asserts that the director erred in
denying the petition because the record establishes that the beneficiary will be, and has been, employed
primarily as a manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10 1(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 (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 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.
WAC 05 800 44232
Page 3
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in
a primarily managerial capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § IIOl(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.
The petitioner described the beneficiary's proposed managerial duties In a letter dated March 29, 2005
appended to the initial petition as follows:
[The beneficiary] will handle all company's accounts pertammg to Arabic design and
publishing including but not limited to art direction, managing team of designer and reporting
to higher management. [The beneficiary] will be operating in a managerial position to ensure
utilizing all his skills and knowledge for the company.
As our Managing Art Director, [the beneficiary] will have overall responsibility for
effectively leading and managing new business development, strategic growth, and marketing
direction. Responsibilities include:
• Applying creative skills in communication media to existing and newly acquired
clients.
• Successfully develop and execute strategy initiatives to fulfill the company's growth
and revenue goals.
• Work with our partners to develop and validate the company's revenue and financial
projections and assumptions.
• Determine client fee/compensation structure and core client mix.
• Determine if existing relationships may lead to immediate business opportunities, and
WAC 05 800 44232
Page 4
attempt to bring these clients into the company.
• Determine overall new business strategy.
• Finalize and outline services to be provided.
• Identify key company competitors and competitive advantages.
• Determine ideal target company prospect and assemble new business hit list of
prospective companies.
• Determine optimal methods for promoting the company, including marketing
materials needed.
• Continue to be involved with key Middle Eastern marketing conferences and
initiatives to maintain credibility as an industry expert.
• Facilitate business growth, change and team spirit through motivating, coaching,
delegating to and training employees.
On June 6, 2005, the director requested additional evidence. The director requested, inter alia, evidence that
the beneficiary will manage other supervisory, managerial, or professional employees, or will manage an
essential function within the organization; an organizational chart for the United States operation describing
the petitioner's staffing levels; and wage reports for the petitioner's employees.
In response, the petitioner provided an organizational chart portraying the beneficiary as supervising an
"assistant art director" who, in tum, is portrayed as supervising a "graphic designer." Both of the subordinate
employees are shown to have two-year degrees in graphic design, and both are described as being engaged in
providing graphic design services to clients. The petitioner also provided a letter dated August 22, 2005
indicating that, since many of the "people involved in [the petitioner's] projects are working on an
independent contractor basis," they are not listed in the wage reports but are identified in another document
titled "Transaction Detail by Account." Because the "assistant art director" and the "graphic designer" are not
listed in the wage reports, but do appear in the "Transaction Detail by Account," it appears that the two
subordinate staff members are independent contractors hired by the petitioner to work on certain projects.
On September 21, 2005, the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, counsel to the petitioner asserts that the director erred in denying the petition because the record
establishes that the beneficiary will be employed primarily as a manager.
Upon review, the petitioner'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. In this matter, the petitioner and its
counsel have consistently claimed that the beneficiary will be employed primarily in a managerial capacity
and, as such, the AAO's analysis will initially be limited to the petitioner's eligibility for this classification.
WAC 05 80044232
Page 5
The petitioner has failed to establish that the beneficiary will act in a "managerial" capacity. In support of its
petition, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails
to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the
beneficiary 's duties will include developing "strategy initiatives" and determining "new business strategy."
The petitioner did not, however, specifically define what strategies will be developed and determined. 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).
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).
Moreover , the petitioner did not specifically explain how much time the beneficiary will devote to the various
duties listed in the job description. This is particularly important in this matter because many of the duties
ascribed to the beneficiary do not appear to be managerial in nature. To the contrary, many of the duties
appear to be related to marketing , or are operational in nature, and would not rise to the level of managerial
duties. For example, duties such as identifying key company competitors, assembling business hit list,
formulating company promotion methods, involvement in marketing conferences, and determining ideal
target company prospects are not managerial in nature when the functions inherent to these duties are
performed by the beneficiary. Not only does the petitioner fail to specifically define what the beneficiary
must do to perform these duties, the petitioner does not appear to employ a subordinate staff which could
relieve the beneficiary of performing the functions inherent to these duties. The record indicates that the
petitioner employed two people in the quarter in which the instant petition was filed , and the only independent
contractors described by the petitioner are engaged in providing services to clients. Therefore , the petitioner
has not established that the beneficiary is "primarily" employed in a managerial capacity. 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 also failed to establish that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that he will manage an essential function within the
organization. While the petitioner did supply an organizational chart, the job descriptions provided for the
two subordinate staff members indicate that they are performing the tasks necessary to produce a product or
to provide a service , e.g., providing graphic design services to clients. While the petitioner describes the
"assistant art director" as having supervisory authority over the graphic designer , the record fails to establish
that this staff member is truly a supervisory or managerial employee. Not only does the job description for
the "assistant art director" fail to establish that he is primarily engaged in supervising the graphic designer
rather than primarily providing graphic design services himself, it is simply not credible that an independent
contractor , a graphic designer, would be hired by the petitioner to primarily supervise the work of one other
independent contractor who is also a graphic designer. Therefore, in view of the above , the beneficiary would
appear to be a first-line supervisor , the provider of actual services, or a combination of both. 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. 101(a)(44)(A)(iv) of the Act; see also Matter
WAC 05 800 44232
Page 6
of Church Scientology International, 19 I&N Dec. at 604. Moreover, the job descriptions provided for the
subordinate staff members do not establish that they are professionals.'
Finally, even if the "assistant art director" and the "graphic designer" were established to be supervisory,
managerial, or professional positions, the beneficiary's supervision of independent contractors is a non­
qualifying duty. While the supervision and use of independent contractors in certain circumstances could
establish that a manager or executive is being relieved of the need to perform non-qualifying functions, the
supervision of independent contractors alone is not a qualifying duty under the regulations. Title 8 C.F.R. §
214.2(l)(l)(ii)(B) clearly states that a manager must supervise and control the work of employees.'
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
lIn evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). In this case, the petitioner has indicated that both of the
subordinate staff members have two-year degrees. Therefore, it has not been established that they are
professionals.
2Also, the petitioner has not established 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(l)(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. In this matter, the petitioner has not provided evidence that the beneficiary will manage an
essential function. The petitioner's vague job description, which includes operational and administrative
tasks and indicates that he will likely have first-line supervisor responsibilities, fails to document what
proportion of the beneficiary's duties would be managerial functions and what proportion would be non­
managerial. 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 would be managerial, nor can it deduce
whether the beneficiary will be primarily performing the duties of a function manager. See IKEA US, Inc. v.
u.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 05 800 44232
Page 7
capacity as required by 8 C.F.R. § 214.2(l)(3)?
The second issue in the present matter is whether the beneficiary has been employed by the overseas entity in
a primarily managerial capacity.
As the petitioner failed to specifically describe the beneficiary's duties abroad, the director requested
additional evidence on June 6, 2005. The director requested, inter alia, an organizational chart for the foreign
employer and a detailed description of the beneficiary's job duties.
In response, the petitioner described the beneficiary's job duties in a statement titled "Art Director Duties in
Lebanon." As this statement is in the record, the entire job description will not be repeated here. Generally,
the petitioner described the beneficiary as having three sets of duties abroad: (1) creative duties; (2) primary
responsibilities; and (3) managerial duties. The job description does not reveal how much time the
beneficiary devotes to each set of duties.
The petitioner also provided an organizational chart portraying the beneficiary as supervising one graphic
designer. His subordinate employee is described as having a two-year degree in graphic design.
On September 21, 2005, the director denied the petition. The director determined that the petitioner did not
establish that the beneficiary has been employed abroad in a primarily managerial or executive capacity.
On appeal, counsel to the petitioner asserts that the beneficiary has been employed abroad in a primarily
managerial capacity.
Upon review, the petitioner's assertions are not persuasive.
As explained above, 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 and its counsel
consistently assert that the beneficiary has been employed abroad in a managerial capacity and, as such, the
AAO's analysis will initially be limited to the petitioner's eligibility for this classification.
31t is noted that the director determined that the petitioner failed to satisfactorily explain the employment
status of the two subordinate staff members. Upon review, the AAO disagrees and hereby withdraws the
director's comments regarding the petitioner's failure to provide copies of wage reports related to these
independent contractors. The record adequately establishes that these staff members are not employees, that
wage reports do not exist for the independent contractors, and that these staff members are employed on a
project specific basis. The petitioner adequately and consistently explained this arrangement, and the AAO
does not find that this explanation undermines the credibility of the petition. That being said, the petitioner
has nevertheless failed to establish that the beneficiary will be employed primarily in a managerial capacity,
and the petition may not be approved for that reason.
WAC 05 80044232
Page 8
The petitioner has failed to establish that the beneficiary has been acting in a "managerial" capacity for the
foreign employer. In support of its petition, the petitioner has provided a vague and nonspecific description of
the beneficiary's "managerial duties" that fails to demonstrate what the beneficiary does on a day-to-day
basis. For example, the petitioner is described as establishing goals and objectives. However, the petitioner
never reveals what goals and objectives are being developed. 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. 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., 724 F. Supp. 1103,
aff'd, 905 F.2d 41.
Moreover, most of the tasks ascribed to the beneficiary are non-qualifying administrative or operational tasks
and do not rise to the level of managerial or executive duties. For example, the functions of designing
brochures and advertisements, and developing layouts, are not managerial in nature. Importantly, the
petitioner did not reveal how much time the beneficiary devotes to the "creative duties" and the "primary
responsibilities," which dominate the job description, and how much time he devotes to the vaguely described
"managerial duties." Further, since the record indicates that the beneficiary only has one subordinate
employee, it has not been established that a subordinate staff is available to relieve the beneficiary of the need
to perform the non-qualifying tasks inherent in his duties. Absent a specific and credible explanation of his
managerial duties, it cannot be determined that the beneficiary has been "primarily" employed abroad in a
managerial capacity. 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 1 o1(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
The petitioner also failed to establish that the beneficiary has been supervising and controlling the work of
other supervisory, professional, or managerial employees, or that he has been managing an essential function
within the organization. While the petitioner did supply an organizational chart, the job description for the
beneficiary's single subordinate employee indicates that this graphic designer, who has a two-year degree, is
performing the tasks necessary to provide a service or produce a product. Therefore, the petitioner has not
established that the graphic designer is a supervisory, professional, or managerial employee. The beneficiary
would appear to be a first-line supervisor, the provider of actual services, or a combination of both. 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. 101(a)(44)(A)(iv) of the Act; see
also Matter of Church Scientology International, 19 I&N Dec. at 604. Therefore, the record does not prove
that the beneficiary has been acting in a managerial capacity."
4While the petitioner has not specifically alleged that the beneficiary manages an essential function overseas,
the record would not support this assertion. The petitioner's vague job description, which includes
operational and administrative tasks and indicates that he likely has at most first-line supervisor
responsibilities, fails to document what proportion of the beneficiary's duties are managerial functions and
what proportion are non-managerial. 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 are managerial,
nor can it deduce whether the beneficiary is primarily performing the duties of a function manager. See IKEA
WAC 05 800 44232
Page 9
Beyond the decision of the director , an additional issue is whether the petitioner has established that the
beneficiary has been or will be employed 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 has been or will be acting primarily in an executive capacity. As explained above , the beneficiary
appears to be employed as a first-line supervisor and performs chiefly non-qualifying operational tasks.
Therefore, the petitioner has not established that the beneficiary will be or has been employed primarily in an
executive capacity.
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 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, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
US, Inc., 48 F. Supp. 2d at 24.