dismissed L-1A Case: Religious Missions

ldentifying data deleCed to 
prevent dearly unwammkd 
invasion of oe~~-?-~ 0~~~ 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 03 205 50421 
 Office: TEXAS SERVICE CENTER Date: s~p 0 6 2006 
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. 5 1 101 (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. 
~ob&t P. Wiernann, Chief 
Administrative Appeals Office 
SRC 03 205 50421 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant 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 presidentlchief 
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. 5 1101(a)(15)(L). The petitioner is a non-profit 
corporation organized under the laws of the State of Texas formed 
claims that it is "owned" by an organization in South Africa called the 
beneficiary was initially granted a one-year period of stay to open a new office in the 'United States, and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that 
"[ilt has been established that the position offered qualifies as a managerial or executive position." In support 
of this assertion, counsel to the petitioner relies entirely on an April 23, 2004 Citizenship and Immigration 
Services (CIS) Interoffice Memorandum. This Memorandum provided guidance on the process by which an 
adjudicator, during the adjudication of a subsequent request for petition extension, may question another 
adjudicator's prior approval of a nonimmigrant petition where there has been no material change in the 
underlying facts. Counsel to the petitioner argues that the denial was improper since the circumstances 
justifying a change in a prior adjudication as outlined in the Memorandum were not present in this case. 
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. 5 214.2(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 
SRC 03 205 50421 
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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 himher 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. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
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)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 3 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
SRC 03 205 50421 
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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. 5 1 101 (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 be 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, and implies in its appeal that the beneficiary is acting as both. 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. 
In the initial Form 1-129 petition, the petitioner described the beneficiary's job duties as "direct and develop 
enterprise." No other information regarding the beneficiary's position was provided. 
On September 16, 2003, the director requested additional evidence. 
 The director requested, inter alia, 
evidence regarding the petitioner's staffing in the United States (including employee titles, duties, and 
educational background of professional employees); a definitive statement describing the beneficiary's duties, 
percentage of time spent on each duty, and a description of subordinate employees; the petitioner's 
organizational chart; and the petitioner's tax 
 The director also requested evidence 
that the petitioner is owned and controlled by 
 of South Africa. 
In response, the petitioner submitted evidence that its only employees are the beneficiary and a part-time 
secretary, and it provided a breakdown of the beneficiary's duties as follows: 
1. Consultant for Afiican missions 25% 
SRC 03 205 50421 
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2. Promoter 25% 
3. Mission campaign coordinator 10% 
4. Plan Gospel Chariot travels into Africa 20% 
5. 
 Order, collect & ship literature for free distribution in Africa 
 10% 
6. Negotiate and coordinate distribution of donated Bibles 5% 
7. 
 Negotiate building of third gospel chariot for central Africa 
& coordinate mission work in Namibia and Angola. 
 5% 
On March 27, 2004, 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, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager. 
In support of this appeal, the petitioner relies entirely on an April 23, 2004 CIS Interoffice Memorandum. 
This Memorandum provided guidance on the process by which an adjudicator, during the adjudication of a 
subsequent request for petition extension, may question another adjudicator's prior approval of a 
nonimmigrant petition where there has been no material change in the underlying facts. Counsel to the 
petitioner argues that the denial was improper since the circumstances justifying a change in a prior 
adjudication as outlined in the Memorandum were not present in this case. 
Upon review, petitioner's assertions are not persuasive. As a threshold issue, the Memorandum relied upon 
by the petitioner is not applicable to this case. As explained in the first footnote of the Memorandum, the 
guidance does not apply to L-1 "new office" extension petitions. Since the current petition is a new office 
extension petition, the Memorandum does not apply.' 
1 
Given the petitioner's complete reliance on the guidance in the Memorandum in its appeal, the legal 
significance of the April 23, 2004 Memorandum should be addressed generally. This Memorandum, which 
specifically states that adjudicators are not bound to approve subsequent petitions because of erroneous prior 
approvals, limits its authority on Page 4 of the Memorandum: 
This memorandum is intended solely for guiding USCIS personnel in performance of their 
professional duties. It is not intended to be, and may not be relied upon, to create any 
right or benefit, substantive or procedural, enforceable at law by any individual or other 
party in removal proceedings, in litigation with the United States, or in any other form or 
matter. 
Courts have consistently supported this position. Loa-Herrera v. Trominski, 23 1 F.3d 984, 989 (5th Cir. 
2000) (holding that CIS memoranda merely articulate internal guidelines for INS personnel; they do not 
establi~h judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon 
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also Noel v. 
Chapman, 508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to INS district directors regarding 
voluntary extended departure determinations to be "general statements of policy"); Prokopenko v. Ashcroft, 
372 F.3d 941, 944 (8th Cir. 2004) (describing an INS Operating Policies and Procedures Memorandum 
(OPPM) as an "internal agency memorandum," "doubtful" of conferring substantive legal benefits upon 
SRC 03 205 50421 
Page 6 
Title 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision that allows for 
an extension of this one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the 
point that it can employ the beneficiary in a predominantly managerial or executive position as defined by 
law. 
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(1)(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 above, 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. 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. 
The petitioner has failed to prove that the beneficiary will act in a "managerial" capacity. In support of its 
petition, the petitioner supplied a job description and organizational chart indicating that the beneficiary will 
manage one part-time secretary and spend most of his time providing consulting services, promoting his 
mission, raising fknds, and distributing religious literature. The record is devoid of any evidence of whom, 
other than the part-time secretary and the beneficiary, would be performing the tasks necessary for the 
petitioner to provide its services. The job description is also vague in that "promoting" and "consulting" are 
not defined in any way. Therefore, it appears the beneficiary is a first line supervisor andlor the provider of 
actual services. 
Providing consulting services, coordinating campaigns, planning travel, and distributing religious literature 
are functions of specialists or clerical employees, not of an L-1A manager. 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 
aliens or binding the INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS 
Operations Instruction (01) as an "internal directive not having the force and effect of law"); Ponce-Gonzelez 
v. INS, 775 F.2d 1342, 1346-47 (5th Cir. 1985) (finding that 01s are "only internal guidelines" for INS 
personnel, and that an apparent INS violation of an 01 requiring investigation of an alien's eligibility for 
statutory relief from deportation was at worst "inaction not misconduct"). 
Therefore, the Memorandum does not create any substantive rights in the petitioner, and a failure to follow 
the guidance in the Memorandum, even if applicable to the current "new office extension" petition, would not 
be grounds for a withdrawal of the decision. The substance of the petition, being whether the beneficiary will 
be working in a primarily executive or managerial capacity, is of paramount importance in this appeal. 
SRC 03 205 50421 
Page 7 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Intl., 19 I&N Dec. 593, 604 (Comm. 1988). A managerial or executive 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 
Intl., 19 I&N Dec. 593, 604 (Comm. 1988). Since the record fails to reveal the educational or skill level of 
the subordinate secretary, it cannot be determined if she rises to the level of a professional employee.' 
Therefore, the record fails to establish that the beneficiary is acting in a managerial capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 10 1 (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 managerial 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 fi-om higher level executives, the board 
of directors, or stockholders of the organization." Id. As indicated above, the petitioner has failed to prove 
that the beneficiary, who is allegedly managing no more than one employee and who is apparently engaged in 
providing services, i.e., consulting, will be acting 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 
manner. See, e.g.,, Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. 8 214.2(1)(3). 
Beyond the decision of the director, the evidence presented does not prove that the petitioner and the foreign 
employer are qualifying organizations as defined in 8 C.F.R. 5 2 14.2(1)(l)(ii)(G). To establish a "qualifying 
2 
 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 10l(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe 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 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
SRC 03 205 50421 
Page 8 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e., one entity with "branch" offices), or 
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. 
fj 214.2(1). If a company owns a majority interest in a petitioner, then the companies will be deemed to have a 
parentlsubsidiary relationship under the definition. 
In the current case, counsel to the petitioner, a Texas non-profit corporation 
claims in his a 
 ellate brief that the petitioner is "owned" by a 
'The beneficiary owns 100% of World Bookworm/ 
 , Republic of 
South Africa, which organization in turn owns 100% of the Petitioner's outstanding and issued shares of 
common stock, thereby constituting a wholly-owned subsidiary of the Company abroad." 
 While stock 
certificates were not provided, the petitioner did provide two letters in which the authors state that the 
petitioner is owned by the South African entity. A close review of the petitioner's corporate documents, 
however, reveal that these claims are not supported by the evidence. 
The Articles of Incorporation and Bylaws submitted by the petitioner state that the petitioner is a Texas non- 
profit corporation with members and that all power is vested in the Board of Directors, including the selection 
and expulsion of members and officers. There is no evidence that the corporation is a non-profit, stock 
corporation and, if it is, that the petitioner has ever issued stock. The Board is entirely independent, and the 
directors may fill vacancies or amend the bylaws or articles without permission. There is nothing in the 
Articles or the Bylaws granting the foreign entity, or any other entity, the power to control the assets of the 
petitioner or the selection of directors, officers, or members. 
The regulations 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 Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593 (BIA 1988) (in immigrant visa proceedings). In the context of this 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 at 595. In this case, the record is devoid of 
any evidence proving that the foreign entity has the direct or indirect legal right to control the assets or 
management of the petitioner. Therefore, the petitioner has failed to prove the existence of a qualifying 
relationship. For this additional reason, the petition must be denied. 
The initial approval of an L-1A 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. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. fj 1361. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 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 
SRC 03 205 50421 
Page 9 
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 AA0 denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.