dismissed L-1A Case: Retail

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rrn. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
1
File: SRC 05 13851263 Office: TEXAS SERVICE CENTER Date: AUG 06 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.
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Robert . iemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 138 51263
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 appeal will be dismissed.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president/general
manager 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)(l5)(L). The petitioner is a corporation
organized under the laws of the State of Florida and is allegedly a retailer. 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.1
The director denied the petition concluding that the petitioner did not establish that (l) the petitioner and the
foreign entity are still qualifying organizations because it was not established that the foreign entity or the
petitioner is doing business; (2) the petitioner had been doing business for the previous year; or (3) 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. In support of the appeal, counsel to the petitioner submits a
brief which avers that both the foreign entity and the petitioner are doing business, that the beneficiary is
engaged in performing managerial duties, and that the petitioner's four employees relieve the beneficiary from
performing non-managerial duties.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United States, a
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the
beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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.
'According to Florida state corporate records, the petitioner's corporate status in Florida was "administratively
dissolved" on September 15, 2006. Therefore, since the corporation may not carry on any business except
that necessary to wind up and liquidate its affairs, the company can no longer be considered a legal entity in
the United States. See Fla. Stat. 607.1405 (2006). Therefore, if this appeal were not being dismissed for the
reasons discussed herein, this would call into question the petitioner's eligibility for the benefit sought.
SRC 05 138 51263
Page 3
(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.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (1)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(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 first two issues in this matter are whether the petitioner has established that it and the foreign entity are
both "doing business," and are thus qualifying organizations, and whether the petitioner has been "doing
business" for the previous year.
The regulation at 8 C.F.R. § 214.2(l)(l4)(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 (1)(1)(ii)(G) of this section[.]
Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(1)(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). Moreover, as this petitioner concerns the extension
SRC 05 13851263
Page 4
of a "new office" petition, the petitioner is also required by 8 C.F.R. § 214.2(l)(l4)(ii)(B) to establish that the
petitioner has been "doing business" for the previous year.
In this matter, the petitioner submitted a copy of its 2004 Form 1120 indicating that the petitioner had sales of
$107,926.00 in 2004 and bank statements from January 2004 through March 2005. The most recent bank
statement reported an ending balance of $22,374.06 and reflected almost daily account activity. Much of this
activity appears related to deposits and vendor fees connected to credit card transactions. The petitioner's
payment of rent for its shopping mall location also appears in the statements. However, the petitioner did not
provide any evidence that it purchased and sold goods as part of its alleged retail activities. Likewise, the
petitioner failed to provide any evidence that the foreign entity is currently "doing business." All of the business
records provided for the foreign entity concern activities in 2004 or earlier. The current petition was filed on
April 18, 2005.
On May 14, 2005, the director requested additional evidence. The director requested, inter alia, evidence that
both the petitioner has been doing business for the past year and evidence that the foreign entity is currently doing
business.
In response, the petitioner provided a variety of invoices from 2004 and 2005 indicating that the petitioner
purchased goods during its first year in operation. The petitioner did not provide any evidence that it sold any of
these goods purchased other than the bank statements submitted with the initial petition. Also, while the
petitioner did provide additional business documentation pertaining to the foreign entity, none of this
documentation is dated after September 2004.
On January 3, 2006, the director denied the petition. The director concluded that the petitioner did not establish
that (1) the petitioner and the foreign entity are still qualifying organizations because it was not established
that the foreign entity or the petitioner is doing business; (2) the petitioner has been doing business for the
previous year.
On appeal, counsel asserts that both the foreign entity and the petitioner are doing business.
Upon review, the AAO agrees with counsel that the petitioner has established that it has been doing business
for the previous year pursuant to 8 C.F.R. § 2 I4.2(l)(l4)(ii)(B) and was doing business at the time the instant
petition was filed, and the director's decision to deny the petition on these grounds will be withdrawn.
However, the AAO will dismiss the appeal because the petitioner failed to establish that the foreign entity was
"doing business" at the time the petition was filed. Therefore, the petitioner and the foreign entity have not
been established to be qualifying organizations.
The petitioner has established that it is an active business entity which engaged in the regular, systematic, and
continuous provision of goods and/or services during its first year in operation. The petitioner filed taxes
indicating that, for the first eight months of operation, the petitioner had $107,926.00 in sales. The petitioner
also established that it maintained a bank account during this time and that this account had almost daily activity.
Furthermore, this activity appears directly related to the regular, systematic, and continuous operation of a retail
establishment in a shopping mall. Finally, the petitioner established that it purchased and sold merchandise
SRC 05 13851263
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during the immediate prior year. Therefore, the petitioner has established that it was doing business during the
previous year, and the director's decision to deny the petition on these grounds will be withdrawn.
Nevertheless, the petition must be denied because the petitioner failed to establish that the foreign entity was
doing business at the time the petition was filed. As indicated above, the most recent evidence of any business
activity by the foreign entity submitted by the petitioner dates from September 2004. The current petition was
filed on April 18, 2005. As the definition of a qualifying organization requires the petitioner to establish that the
foreign entity is currently "doing business," the petitioner has failed to establish that it has a qualifying
relationship with the foreign entity as required by 8 C.F.R. § 214.2(l)(l4)(ii)(A). For this reason, the petition
must be denied.
The third 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. § 1l01(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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1I01 (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
SRC 05 138 51263
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(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
section 101(a)(44)(B) of the Act. Counsel asserts on appeal that the beneficiary's duties are managerial while
the petitioner asserts in the petition that the beneficiary will be employed in an executive capacity. 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. Given the lack of clarity, the AAO will
assume that the petitioner is asserting that the beneficiary will be employed either as a manager or an
executive and will consider both classifications.
In response to the Request for Evidence, the petitioner described the beneficiary's job duties and the roles of
his subordinate employees in a letter dated August 5, 2005 as follows:
The [petitioner] has five employees, including [the beneficiary]'. [The beneficiary] will
continue being responsible for the management and business development activities for the
U.S. entity, including sales and marketing strategies and product positioning. [The
beneficiary] is still performing duties as an executive. He supervises [a store supervisor]
(manager). The store manager supervises two [sales persons].
The petitioner also provided an organizational chart and wage reports confirming its employment of four
individuals including the beneficiary. The organizational chart shows the beneficiary at the top of the
organization supervising the three individuals identified in the August 5, 2005 letter. While one of the
employees is described as a "supervisor," the petitioner did not provide a job description for this employee.
On January 3, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of a 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 managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that 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
2Itis noted that, even though the petitioner avers that it employs five persons, both the list of employees in the
August 5, 2005 letter immediately subsequent to this averment and the wage reports confirm that the
petitioner employs four persons including the beneficiary. While the petitioner does not explain this
inconsistency, it appears merely to be typographical error.
SRC 05 13851263
Page 7
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
predominantly managerial 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 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.
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 will do on a day-to-day
basis. For example, the petitioner states that the beneficiary is "responsible for the management and business
development activities." The petitioner did not, however, specifically explain what these responsibilities
entail. The fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job
description as the sole managerial employee does not establish that the beneficiary will actually perform
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). 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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart, wage reports, and titles for the subordinate employees, the
beneficiary appears to manage a staff of three employees who are engaged in operating the petitioner's
business, i.e., a retail operation. While the petitioner has given one subordinate employee a lofty
"supervisory" title, the petitioner has not established that this employee is primarily engaged in performing
supervisory or managerial duties. To the contrary, the subordinate employee appears to be engaged in
performing tasks related to providing a service or producing a product, i.e., working at the retail operation.
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.
SRC 05 138 51263
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101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, as the educational and skill levels of the subordinate employees have not been disclosed, the
petitioner has not established that the beneficiary will manage professional employees.' Therefore, the
petitioner has not established that the beneficiary will be employed primarily 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 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
3In 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 ofShin, 11 I&N Dec. 686 (D.D. 1966).
4While 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 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(1)(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
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 his duties, the AAO cannot determine what
proportion of his duties would be managerial, nor can it deduce whether the beneficiary will primarily
perform the duties of a function manager. See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22, 24
(D.D.C. 1999).
SRC0513851263
Page 9
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 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 will do 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 manner. 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.
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., 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. § 1361.
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. The petitioner has not met this burden.
ORDER: The appeal is dismissed.