dismissed L-1A Case: Real Estate Development

identifyingdatadeleted~~d
preventcle,arlyunwrvacy
invasio,nof persona pn
t1.S.De~artnient ofl,lomeland Security
20 Massachusetts Ave" N,W" Rm, A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
1)7
File: WAC 06 04150537
IN RE: Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
APR 19 2001
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..
wwW.pscis.gov
(
WAC 06 041 50537
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 extend the employment of its president and
chief executive officer as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(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 Nevada and is allegedly engaged in the business of real estate
development. The beneficiary was initially granted two one-year periods of stay to open a new office in the
United States, and the petitioner now seeks to extend the beneficiary's stay for two years.
The director denied the petition concluding that the petitioner did not establish (1) that it has a qualifying
relationship with the overseas employer; or (2) that the beneficiary will be employed in the United States in a
primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director
erred, that the petitioner has a '.qualifying relationship with the foreign entity as the foreign entity is doing
business as defined in the regulations,' and that the beneficiary's duties in the United States are primarily those
of an executive or manager. In support of these assertions, the petitioner submits a brief and additional
evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R .. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (I)(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
WAC 06 041 50537
Page 3
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)(14)(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 in
paragraph (l)(1)(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
managerial or executive capacity; and,
(E) Evidence of the financial status of the United States operation.
It is noted that, even though the instant petition concerns a second extension petition, the first extension was
essentially an approval of a second "new office" petition. Therefore, the criteria set forth in 8 C.F.R. §
214.2(l)(14)(ii) are applicable to the instant petition~ .
The first issue in this matter is whether the petitioner has established that it has a qualifying relationship with
the foreign employer.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(l)(3)(i) would also require evidence of a qualifying relationship even if the instant
petition were not one seeking to extend the approval of a "new office." Title 8 C.F.R. § 214.2(i)(1)(ii)(G)
defines a "qualifying organization" as a firm, corporation, or other legal entity which "meets exactly one ofthe
qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (l)(l)(ii) of this section" and "is or will be doing business." "Doing Business" is defined in part as
"the regular, systematic, and continuous provision of goods and/or services by a qualifying organization." 8
C.F.R. § 214.2(l)(1)(ii)(H). Finally, an "affiliate" is defined in relevant part as "[o]ne of two legal entities
owned and controlled by the same group of indivi.duals, each individual owning and controlling
WAC0604150537
Page 4
approximately the same share or proportion of each entity." 8 C.F.R. § 214.2(1)(l)(ii)(L)(2).
In this matter, counsel asserts in a memorandum appended to the initial petition that both the foreign employer
and the petitioner are owned by the beneficiary and her husband. While exact proportions were not specifically
revealed for the foreign employer, it is implied that each spouse owns 50% of each entity. Counsel also asserts
that the foreign employer was established in October 1991. In support of these assertions, the petitioner provided
a copy of a "certificate of incorporation" indicating that the foreign employer was organized asa "private limited
company" pursuant to the laws of the United Kingdom on November 6, 2003; a letter from Companies House
dated November 29, 2003 indicating that the beneficiary is a company director; and copies of the beneficiary's
personal British tax returns indicating that she derived income from "rents and other income from land and
property" and that this income was offset.by a variety of expenses. However, the tax returns do not indicate that
any money was paid by the beneficiary as wages to employees nor do they indicate that the beneficiary received
wages as an employee of the "private limited company" formed in 2003. Finally, the petitioner provided an
explanatory note regarding the foreign employer and the beneficiary's individual tax returns as follows:
The reason that the petitioner is providing the beneficiary's tax returns is due to the structure and
operation of the foreign company.
[The beneficiary] first established the foreign company in the beginning of the 1990's. When she
established the company she utilised a number of trading names, including.•••••••
however for tax purposes she was regarded as a sole proprietor.
As [the beneficiary] further established and expanded the business in the U.K. she was joined by
a number of her family members including her [p]arents and latterly her husband. Despite the
fact,that is now a fully established and thriving business, on the advice of the [sic]
their accountant, all parties involved in the business activities of 7 5 P 1 J' were advised
that it would be financially prudent to continue to work as independent contractors/sole
proprietors rather than formally working under the wings of and drawing
company salaries. Hence the reason for the individual tax returns rather than company tax
documents .
.The petitioner also provided a variety of invoices, agreements, correspondence, and other business documents
related to the leasing of approximately 13 properties in the United Kingdom. These documents do not
specifically refer to the "private limited company," but clearly involve the beneficiary and/or her husband and
also make reference to "Moss Properties."
On November 25,2005, the director requested additional evidence. The director requested, inter alia, evidence
establishing the ownership of the "foreign company;" evidence that the foreign employer is a valid business
entity; sole proprietorship registration documents; photographs of the foreign employer's business premises;
business license; tax documents for the business; and bank statements.
In response, the foreign employer provided a memorandum in which it explains its structure as follows:
. WAC 06 041 50537
Page 5
As stilted in the initial Ll application and subsequent renewals, the company has been trading
since the early 1990's but was officially incorporated in 2003 in order to secure the name "Moss
Property Development" and prevent others from using this name.
•••••• is not a "Sole Proprietorship" as suggested by [Citizenship and Immigration
Services] in the [Request for Evidence], but rather a "Private Limited Company" formally
established and incorporated with the Reigstrar of Companies for England and Wales.
The foreign employer reiterated that "the owners and people associated with the company have always filed their
own personal tax returns and not a tax return for the foreign company." However, the petitioner did enclose a
2005 Annual Return for the "private limited company" which indicates that the beneficiary and her husband
jointly own the private limited company's single issued share. It is unclear whether this return was actually filed
by the private limited company or whether this was generated for informational purposes by
The petitioner also provided copies of bank statements for two accounts. One account lists the beneficiary as the
owner. The other account uses the identifier " However, it is not clear whether this
account is owned by the private limited company or whether the beneficiary, the beneficiary and her husband, or
some other party is the actual oWner of the account. The' :' does show activity related to
the leasing of those properties identified in the initial petition.
On February 26, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that it has a qualifying relationship with the foreign employer. Specifically, the director determined that
the petitioner failed to establish that the foreign employer is "doing business."
On appeal, counsel asserts that the record establishes that the foreign employer is "doing business" as defined in
the'regulations.
Upon review, the petitioner's assertions are not persuasive.
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 of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes,-,18I&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 a threshold issue, it must be noted that the record is unclear as to the identity of the foreign employer. The
petitioner asserts that the foreign employer, originally established in 1991, organized itself as a private limited
company in 2003, The petitioner also asserts in response to the Request for Evidence that the foreign entity is
not a "sole proprietorship."· However, the petitioner also explains that the "owners and people associated with
the company" file individual tax returns in lieu of "drawing company salaries," that the company was formed to
protect its trade name, and that the company does not file tax returns. Moreover, none of the invoices; leases,
WAC0604150537
Page 6
bank statements, or business documents provided by the petitioner pertains to the "private limited company."
Instead, all of these documents appear to pertain to business activities, particularly the leasing of real estate,
pursued by the beneficiary, her husband, and other family members. The beneficiary's individual tax returns
confirm that she has historically reported rental income and related expenses associated with these business
activities. Therefore, the ownership and organization of the private limited company appears to be entirely
irrelevant to this proceeding because it has not been established that this company is engaged in any business
activity. It has not been established that the petitioner has a qualifying relationship with the private limited
company due to the petitioner's failure to establish that the private limited company is doing business as defmed
in the regulations. .
Furthermore, the petitioner has failed to establish that it has a qualifying relationship with the unincorporated
business activities of the beneficiary, her husband, and other family members in the United Kingdom. The record
is devoid of any evidence regarding the ownership and control of the assets which are the subject of the
beneficiary's business activities in the United Kingdom, i.e., rental properties. 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). It is unknown
whether these properties are owned by the beneficiary, the beneficiary and her husband, and/or by third parties.
While the beneficiary's individual British tax returns indicate that at least a portion of the rental income, expense,
and depreciation related to these rental properties has been attributed to the beneficiary, thus indicating that she
has an individual oWnership interest in these properties and/or the business of leasing them, the record does not
explain whether she is the sole owner Mall of the properties, a partial owner of all, or the owner or partial owner
of some. As the record clearly indicates that the beneficiary,her husband, and other family members all report
income related to these business activities and that the beneficiary, as shown in her individual tax returns, does
not report the payment of wages to anyone, it must be concluded that these third parties are deriving income from
the rental units because of ownership stakes in the business and not because of the paYment of salaries by the
beneficiary. Therefore, as only the beneficiary and her husband own membership interests in the petitioning
limited liability company, it has not been established that the same individuals who own and control the petitioner
also own and control the foreign unincorporated business. For this reason, the petition cannotbe approved.
Moreover, it has not been established that the foreign unincorporated business entity is "doing .business" as
defined in the regulations. As explained above, the "foreignbusiness consists-of the leasing and maintenance of
approximately 13 rental properties. Not only is the ownership and control of these assets questionable (see
supra), it has not been established that the leasing of approximately one dozen rental units constitutes the regular,
systematic, and continuous provision of a service. Rather, the· leasing of these units appears to be the
management of assets rather than the operation of a business enterprise. The foreign business does not appear
to have any employees or to have a place of business. Without further evidence regarding the operation of the
business, it does not appear to meet the regulatory definition.
It must be noted that, even though Citizenship and Immigration Services·(CIS) may have approved the two initial
"new office" petitions, the initial approval of an L-1A petition does not preclude CIS from denying an
extension of the original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99
Fed. Appx. 556, 2004 WL 1240482 (5th Cif. 2004). Despite any number of previously approved petitions,
CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden
of proof in a subsequent petition. See section 291 of the Act, 8 U.S.c. § 1361. If.the previous nonimmigrant
WAC 06 04150537
Page 7
petitions were approved based on the same evidence of a qualifying relationship that is contained in the
current record, the approval would constitute material and gross error on the part ofthe director.
Beyond the decision of the director, the petition may not be approved because it has not been established 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." 8 C.F.R. § 214.2(l)(3)(iii). As admitted in the record and
as confirmed by the beneficiary's individual tax returns, the beneficiary has been deriving income from having
an interest in rental properties. The record is devoid of any evidence that the beneficiary has ever been
"employed" in any capacity. The management of one's own investment portfolio which includes rental
properties does not constitute employment as foreseen by the Act and the regulations. For this additional
reason, the petition may not be approved.
The second issue in the present matter is whether the beneficiary will be employed by the United States entity
in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment witl:1inan organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the'organization;
(iii) if another "employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:. .
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
WAC 06 041 50537
Page 8·
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section101(a)(44)(B) of the Act. A beneficiary may not claim to be 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.
Counsel to the petitioner provided a job description for the beneficiary in the memorandum appended to the
initial petition. As this job description is in the record, it wi'll not be reproduced here. Counsel also explained
that, in addition to the beneficiary, the petitioner and/or an affiliated limited liability company employs three
people: (1) an executive assistant (the L-2 spouse of the beneficiary); (2) a real estate broker; and (3) a
transaction coordinator. Counsel describes these employees as performing tasks related to the operation of a
real estate development business and brokerage. The executive assistant is also described as applying
"professional" expertise and as having a university education.
On November 25, 2005,the director requested additional evidence. The director requested, inter alia, a more
detailed description of the beneficiary's job duties and a breakdown of how much time the beneficiary devot~s
to each duty.
In response, the petltIOner provided a memorandum outlining the beneficiary's job duties. As this
memorandum is in the record, it will not be reproduced here. Generally, the beneficiary is described as
devoting 20% of her time to making decisions regarding the acquisition of "large residential and comme~cial
projects;" 10% to evaluating and devising marketing campaigns; 30% to establishing goals and policies; 10%
to identifying "others who have talent" and placing them in "appropriate positions;" 15% to overseeing the
negotiation and approval of real estate contracts and to creating collaborative agreements with CEOs; and
15% to "looking outward, into the marketplace, at the customers' situations. and across functional and
organizational boundaries."
On February 16, 2006, the director denied the petition concluding that the petitioner failed to establish that the
beneficiary will be employed in an executive or managerial capacity.
On appeal, counsel asserts that the director erred and that the record establishes that the beneficiary will be
employed primarily as an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an. executive or ri-Ianagerial position. There is no provision in CIS regulations that
WAC0604150537
Page 9
allows for an extension of this one-year period. If the business does not have sufficient staffing after one year
to relieve the beneficiary from primarily performing operational and administrative tasks, the petitioner is
ineligible by regulation for an extension. In the instant matter, the United States operation has not reached the
point that it can employ the beneficiary in a predoIT).inantlymanagerial or executive position.
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. As explained abov~, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties 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 does on a day-to-day
basis. For example, the petitioner states that the beneficiary devotes over half of her time establishing goals
and policies, marketing, negotiating contracts, and "looking outward" into the market place at customers'
situations. However, the petitioner did not specifically define what policies and goals are being established,
what she does in "devising" marketing strategies, what role she takes in negotiating contracts, and what,
exactly, she does while "looking outward" into the market place at customers' situations. The fact that the
petitioner has given the beneficiary a managerial title and has prepared a vague job description which includes
lofty duties does not establish that the beneficiary is actually performing managerial duties, especially when
the vague job description includes potentially non-qualifying tasks such as devising marketing strategies.
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, aff'd, 905 F.2d 41. 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 ofCalifornia; 14 I&N Dec. 190 (Reg. Comm. 1972).
It must be noted that, on appeal, counsel attempts to supplement the beneficiary's vague job description with a
narrative describing "a day in the life" of the beneficiary. The petitioner was put on notice of required
evidence and given a reasonable opportunity to provide it for the record before the visa petition was
adjudicated. The petitioner failed to submit the requested evidence and now submits it on appeal. However,
the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA
1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the
record of proceeding before the director.
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or managerial employees. As explained in the job descriptions for the subordinate employees, the
beneficiary appears to manage a staff of three employees who are engaged in operating the petitioner's
business. However, the petitioner has not established that these employees are -primarily engaged in
performing supervisory or managerial duties. To the contrary, the subordinate employees appear to be
WAC0604150537
Page 10
,
engaged in performing tasks related to providing a service or producing a product, i.e., selling real estate and
coordinating settlements. Inflated job titles and artificial tiers of subordinate employees are not probative and
will not establish that an organization is sufficiently complex to support a managerial position. In view of the
above, the beneficiary would appear to be primarily a first-line supervisor of non-professional employees, the
. provider of actual services, or a combination of both. 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).· 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.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. In
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. § llOI(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 (Comril.. 1988); Matter of Ling, 13 I&N Dec. 35 (R.c. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of any of the beneficiary's subordinate employees. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.l
IWhile the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless would not support this position even if taken. 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 esser:tial 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. § 2l4.2(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 manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
l
;
WAC 06 041 50537
Page 11
Moreover, it must be noted that, on appeal, counsel explained· that the petitioner has hired four more
independent contractors after the filing of the instant petition. However, the petitioner must .establish
eligibility at the time of filing the nonimmigrant visa petition. A visa petition may pot 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). Therefore, the hiring of additional staff after the filing of the
petition is irrelevant to these proceedings.
Similarly, the petitioner has failed to establish that the beneficiary will act in an '''executive'' capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same rea~ons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary does on a day-to-day basis.
Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line supervisor.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive
capacity.
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non~executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manne'r.See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001);
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason..
As indicated previously, the initial approval of an L-IA new office petition does not preclude CIS from
denying an extension of the original visa based on a reassessment of petitioner's qualifications. Texas A&M
Univ., 99 Fed. Appx. 556, 2004 WL 1240482. Despite any number of previously approved petitions, CIS
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary is primarily a first-line manager of non-professional employees. Absent a clear and credible
breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine what
proportion of her duties would be managerial, nor can it deduce whether the beneficiary is primarily
performing the duties of a function manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F, Supp. 2d 22,
24 (D.D.C. 1999). -'
WAC 06 041 50537 .
Page 12
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of
proof in a subsequent petition. See section 291 of the Act.
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 AAOreviews
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 theAAO denies a petition on multiple alternative grounds, a plaintiffcan
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.