dismissed L-1A Case: Retail Bakery

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invasionofpeJ50Dilprivacy
U.S.Department of Homeland Security
20 Massachusetts Ave., N.W" Rm. 3000
Washington, DC 20529
U:S. Citizenship
and Immigration'
Services
FILE: EAC 07 009 52268 Office: VERMONT SERVICE CENTER Date: DEC 2 1 2IJ7
INRE: Petitioner:
Beneficiary: ,
PETITION: ~etition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 110l(a)(15)(L)
ON 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. '
&~ef
Administrative Appeals Office
www.uscis.gov
'.i
EAC 07 009 52268
"Page 2
DISCUSSION: The Director, Vermont Service Center, den ied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to,extend the employment of its store manager as an
L-IA 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, a Flor ida corporation, operates three
franchised retail bakeries . The petitioner states that it is an affiliate of Azucar y Canela , U., S.A. de c.v .,
located in Mexico City , Mexico. The beneficiary has been employed by the petitioner in L-IA status since
2004 and the petitioner now seeks to extend his status for two years.
The director denied the petition concluding that the petitioner did not establish : (1) that the beneficiary will be
employed in the United . States in a primarily managerial or executive capacity; or (2) that the beneficiary was
employed by the foreign entity 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 for the petitioner asserts that beneficiary
qualifies as a manager under all four criteria set forth at section 101(a)(44)(A) of the Act, in that he manages a
department of the petitioning company, supervises and controls the work of supervisory personnel, has the
authority to hire and fire staff, and exercises discretion over the day-to-day operations of one of the
petitioner's stores. With respect to the beneficiary's employment with the foreign entity , counsel emphasizes
that the beneficiary was previously granted L-lA status, and thus his e~ployment capacity with the foreign
company has already been analyzed. Counsel subm its a brief and additional evidence in support of the appeal.
To establish eligibility for the L-I nonimmigrant visa, classification, the pet itioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically.ia 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 (1)(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 t ime employment
abroad with a qualifying organization w ithin the three years preced ing the filing of
the petition.
EAC 07 009 52268
. Page 3
(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 first issue to be addressed is whether the petitioner established that the beneficiary would be employed in
a primarily managerial capacity under the extended petition. The petitioner does not claim that the
beneficiary would be employed in an executive capacity.
Section 101(a)(44)(A)of the Act, 8 U.S.c. § 1101(a)(44)(A),provides:
The term "managerial capacity" means 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) Has the authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are
directly supervised; 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 filed the nonimmigrant visa petition on October 12,2006. Ina letter dated October 3, 2006, the
petitioner described the beneficiary's duties as follows:
As Store Manager, [the beneficiary] will plan, develop, establish and implement policies and
objectives in accordance with the business strategy developed by the controlling
shareholders. He will manage and coordinate the day-to-day operations. of the Store's
business to ensure that all operational and financial goals and objectives are met within the
established goals. [The beneficiary] will manage and coordinate the activities of all staff and
ensure that they observe and abide by the health and safety measures as established by the
Florida Department of Health; In addition, [the beneficiary] will exercise administrative
EAC 07 009 52268
Page 4
responsibilities in connection with the hiring and training of all personnel , including assistant
managers, cashiers , sales assistants and bakers. [The beneficiary] will also review daily
activity reports , control inventory , prepare employee schedules and payroll and control
expenditures. [The beneficiary] will ensure that the Company adheres to the operational
terms and cond itions of the franchise agreement , in connection with advertising , presentation ,
quality and promotional products.
The petitioner submitted an organizational chart identifying the beneficiary as one oftm:ee store managers in
the petitioning company, with responsibility for supervising 12 employees, who were not identified by name
or jobtitle. The chart shows that the store managers report to a general manager , who, in turn, reports to the
company president. '
In an attachment to the organizational chart, the petitioner provided the following position description for the
company's three store managers:
• Coor~ina te and manage the day-to-day operations of the store's business . Hire and train
store's personnel , including assistant rnanagers , cashiers, sales assistants and bakers.
• Control inventory and expenditures.
• Investigate and resolve customer's complaints about good quality or service.
• Prepare activity reports , and employee schedules.
• Keep records of hours and wage s of employees.
• Make sure that accounts with suppliers ,are paid on a regular basis .
• Ensure that the Company adheres to the operational terms and conditions of the
franchise agreement, In connection ,with advertising, presentation, quality and
promotional products .
The petitioner indicated that each store has assistant ,managers who receive. and check the content of
deliveries, supervise the working area, oversee baked goods preparation and cooking to examine quality and
quantity, and "place orders as requested by store manager." Finally, the "crew members" were described as
receiving and processing customer orders, collecting money, preparing and cook ing baked goods, and keeping
the store's working area clean.
On November 24, 2006 , thedirector issued a request [or additional evidence in which he in s~cted the
petitioner tosubmit : (1) acomprehensive description of the beneficiary's duties w ith an explanation as to how
' his duties will be managerial or executi ve in nature ; (2) a list of full-time U .S. employees, including their
names , job titles, job duties , and a breakdown of the number of hours devoted to the ir job duties on a weekly
basis; (3) payroll records for the months of September and October 2006; and (4) copies of IRS Form 941. . . . ,
Employer's Quarterly Federal Tax Return , for the first three quarters 0[2006 . '
In a response received on February 15, 2007" the petitioner provided the following description of the
,beneficiary's duties :
1. Coordinate and rnanage the day-to-day operations of the store.
EAC 07 009 52268
Page 5
2. Hire and fire store's employees .
3. Assign duties and responsibilities.
4. . Assign. the requisite training of store's personnel.
5. Determine salaries , promotions and payments of bonuses for company workers :
6. Ensure that the Company adheres to the operational terms and conditions of the franchise
agreement in connection with advertising, presentation, quality and p~omotional products .
7. Mediate and resolve personnel conflicts. .'
8. Establish sales and promotions and seasonal marketing strategies .
9. Negotiate with the lessor in reference to premises related issues.
10. Analyze weekly sales and sales per ticket In order to establish which product is selling
best.
11. Monitor budget and review financial transactions to ensure that expenses are within
.budgetary limitations . Determine inventory levels based on sales in order to maximize
profits and reduce costs.
12. Investigate and resolve customers' complaints that can not be resolved by Assistant
Managers.
13. Keep in the store's files records of hours and wages of employees , and forward for
accounting processing. Oversee that payments to suppliers are made in a timely basis and
that all bills fall within budget guidelines.
14. Analyze and keep track of other Mall store's sales strategies and promotions in order to
determine if changes in strategies and promotions would be advisable.
15. Meet with General Manager on 'a weekly basis, or more often as required to analyze
sales, budget and .review marketing and sales strategies.
The petitioner provided an organizational chart depicting the beneficiary's supervision of two assistant
managers, who in turn each supervise one crew supervisor and "crew members." The petitioner explained'
that its employees work in two shifts, from 8:00 a .m. to 3:00 p.m. and from 3:00 p.m. to 10:30 p.m., while the
store is open to the public for 78 hours weekly . The petitioner provided position descriptions for each of the
subordinate positions. With respect to the assistant manager position, the petitioner indicated the following
duties :
1. Open and close store
2. Hire and fire crew members, previous consultation with Store Manager.
3. Tra in workers in baked goods preparation , quality of service and sanitation and safety .
procedures.
4. Observe and evaluate crew members and crew supervisor in 'order to ensure quality of
service and assign their duties based on the best performance of each employee . .
5. Schedule and assign crew members' and crew supervisor's duties for each week.
. 6. Prepare report of worked hours of each employe e to Store Mana~er.
7. Solve conflicts between crew members.
8. Resolve customer' complaints regarding food qual ity and service.
9. Inspect supplies equipment and working area to en sure efficient customer service.
10. Ensure that health and safety standards are met.
EAC 07·00952268
Page 6
11. Coordinate pest control services and waste removal. · Oversee that deep cleaning IS
performed according to standards.
12. Place purchasing orders on a weekly basis .
13: Receive and check the contents of deliveries evaluating quality of products.
14: Establish and enforce procedures against thefts and wastages.
15. Compile and balance cash receipts at the end of each shift, and report to store manager.
16. Record sales data in computer and perform sy~tems back-ups . .
The petitioner stated that the beneficiary, the assistant managers and the crew supervisors are full-time
employees, while crew members work on a part-time basis. The petitioner stated that" due to the nature of the
business it is impossible to provide an accurate breakdown ·of hours devoted to each of the employees' job
duties on a weekly basis ." -.
The petitioner provided the requested payroll records for all employees for the months of September and
October 2006. During the month in which the petition was filed, October 2006, the assistant managers
assigned to the beneficiary's store worked between 31 and 39 hours per week , while the crew supervisors
worked between 21 and 31 hours.The remaining workers, who are assumed to be crew members , generally
worked less than 20 hours per week. Based on the payroll records submitted , the assistant managers and crew
supervisors receive hourly wages of $7.00 while the crew members earn $6:50 per hour.
The director denied the petition on March 16,2007 , concluding that the petitioner had not established that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended pet ition.
The director determined that the beneficiary would not be supervising managerial , supervisory or professional
subordinates. The director acknowledged that the beneficiary's subordinates were ident ified as "managers,"
but was not persuaded that there are several levels of authority within the organization : The director noted that
the petitioner had failed to provide the requested breakdown of each employee's job duties on a weekly basis ,
and further found that the petitioner had not adequately described the beneficiary's job duties, noting that the
duties were described in "abstract form," and failed t<? identify his specific duties within the petitioner's
current staffing arrangement.
The director further found that the organizational chart submitted identified six employees with managerial or
executive job titles, and questioned whether the pet itioner had sufficient staff to provide the sales of the
. business. The director found insufficient evidence to establish that the beneficiary would. be relieved from
participating in non-managerial functions of the business.
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a primarily managerial
capacity, as he manages a department of the petitioning organization, supervises two tiers of supervisory
employees (the assistant managers and crew supervisors) , has the authority to hire and fire employees within
the store he manages, and exercises discretion overthe day-to-day operations of the business.
Counsel objects to the director's contention that the petitioner described the beneficiary's duties in an abstract
manner, submitting that the petitioner's description was "comprehensive and -context specific." Counsel
emphasizes that the regulations do not require an hourly or weekly breakdown of an employee's job duties,, . , .
EAC 07,009 52268
Page 7
and notes that since the beneficiary's duties vary , "the petitioner chose not to submit an arbitrary and unreal
breakdown. "
In addition, counsel asserts that the director erred by determining that the petitioner's managers and assistant
'managers are not "real business managers." Counsel argues that the director had no basis for concluding that
the petitioner simply attached these job titles to employees who actually provide the sales and services of the
organization. Counsel not~s .that the petitioner's ' staffing structure must adhere to franchise agreement
requirements, which clearly delineate management positions, and stresses that "all'Cinnabon' managers must
attend training sessions and perform actual managerial duties."
Upon review, and for the reasons discussed herein ; the petitioner has not established that the beneficiary
would be employed by the petitioner in a primarily managerial or executive capacity.
. .
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 exec~tive or managerial capacity. Id. " v "
The petitioner's initial description of the beneficiary's , duties suggested that the beneficiary performs a
combination of managerial, supervisory and administrative tasks, rather than primarily performing the high­
level duties associated with the statutory ,definition ofmanagerial capacity. ' The claimed managerial duties '
were de scribed in only vague , general terms that conveyed little understanding of what specific qualifying
tasks the beneficiary performs on a day-to-day basis. For 'example, the petitioner indicated that the beneficiary
.will "plan, develop, establish and implement policies and objectives ," "manage and coordinate the day-to-day
operations," "ensure that all operational and financial goals and objectives are met," and ensure that the
company adheres to the terms and conditions of its franchise agreement. The petitioner did not identify the
typical duties associated with any of these broad responsibilities. Reciting the beneficiary's vague job
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed
description of the beneficiary's daily job duties. The petitioner failed to provide any detail or explanation of
the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true
nature of the employmerit. Fedin Bros. Co., Ltd..v, Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905
F.2d 41 (2d. Cir. 1990). ' "
Furthermore, some of the beneficiary's duties, as initially described ; suggested his direct involvement in the. .
petitioner's inventory , administrative. . financial and first-line supervi sory functions. The petitioner indicated
that the beneficiary is respon sible for the training of all'personnel, including ' the crew members, controlling
inventory, controlling ' expenditures , preparing activity reports and employee schedules, preparing payroll ,
keeping hour and wage records , resolving customer complaints , and "making sure" that supplier accounts are
paid. These tasks, while essential to the operation ' of the business, have not been demonstrated to be
managerial or executive i~ nature, ' , .
While the petitioner submitted lengthier position descriptions for the beneficiary arid his subordinates 'in
response to the director's request for evidence, theAAO notes that the petitioner attributed several duties
EAC 07 009 52268
Page 8
previously included in the beneficiary's positron description to .the assistant manager. The petitioner's
description of the beneficiary's subordinate's positions , as described in the initial filing, did not indicate that
lower-level personnel would relieve the beneficiary from directly-performing the above-referenced non­
qualifying tasks. Notably , the assistant manager's duties , as initially described, werelimited to overseeing the
preparation of baked goods , supervising the work area , receiving deliveries, and placing orders based on the
store manager's instructions . In response to the director's request for evidence , the petitioner indicated that the
assistant manager trains all employees, hires and fires crew members, schedules and assigns duties to crew
supervisors and crew members, maintains wage and hour records and resolves customer complaints. All of
these duties were specifically attributed to the beneficiary at the time of filing, and were not included in the
assistant manager's job description. It is incumbent upon the petitioner to resolve any inconsistencies in the
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of
Ho , 19 I&N Dec. 582,591 -92 (BIA 1988).
In addition , the petitioner's initial organizational chart and its original description of its staffing structure did
notiriclude the position of crew supervisor , which was added when the petitioner responded to the request for
evidence. The pet itioner provided no explanation for the changes in the beneficiary's duties, the assistant
manager's duties , or the changes in its organizational structure. The purpose ' of the request for evidence is to
.elicit further information thatclarifies whether eligibility for the benefit sought has been established. 8 C.P .R.
§ 103.2(b)(8). When responding to a request for evidence , a petitioner cannot offer a new position to the ,
beneficiary, or materially change aposition's title , its level of authority within the organizational hierarchy, its. .
associated job responsibilities, or the responsibilities .of the beneficiary's subordinate employees. The
petitioner must establish that the position offered 'to the beneficiary when the petition was filed merits
classification as a managerial or executive position . Matter of Micheli'} Tire Corp., 17 I&N Dec . 248, 249
.(Reg. Comm. 1978). A pet itioner may not make material changes to a petition in an effort to make a deficient
petition conform to USCIS requirements. See Matter ofIzummi, 22 I&NDec . 169, 176 (Assoc. Carom. 1998).
Overall, given the lack of explanation for the changes to the position descriptions and organizational structure
, made subsequent to the date of filing, the AAO will place greater probative weight on the initial position
descriptions provided for the beneficiary and his subordinates and the original organizational chart.
As discussed above , the initial position description including a mix of qualifying and non-qualifying duties.
Based on the current record , the AAO is unable to determine whether the claimed managerial duties const itute
the majority of the beneficiary's duties , or whether . the beneficiary primarily performs non-managerial
administrative, operational or first-line supervisory duties. Although specifically requested by the director ,
the petitioner's description of the beneficiary's job duties does not establish what proportion of the
beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. See Republic of
Transkei v. INS , 923 F .2d 175, 177 (D.C. Cir. 1991). The word "primarily" is defined as "at first, "
principally,' or "chiefly ." Webster's II New College Dictionary 877 (2001) . Where an individual is
"principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service , that
individual cannot also be "principally" or "chiefly" performing managerial or executive duties. Contrary to .
, .
counsel's contention that there is no regulation requiring a percentage of time devoted to each of the
beneficiary's duties, USCIS must determine that the beneficiary is primarily engaged in a managerial or
EAC 07 009 52268
Page 9
executive capacity : To make such a determination it is necessary to require a detailed description of the
beneficiary's duties and the time the beneficiary devotes to these duties .'It-is especially relevant when several
of the beneficiary 's daily tasks , such as training bakers and .cashiers, resolving retail customers' complaints ,
and controlling inventory, 'do not fall directly under traditional managerial or executive duties as defined in
I , . ~
the statute. See e.g. IKEA US, Inc. v. U.S. Dept. of Justice 48 F. Supp. 2d 22 ,.24 (D.D.C. 1999).
. I . .
The AAO acknowledges the petitioner's claim that it is impossible to provide a breakdown of how the
beneficiary allocates his ' time among his duties because his duties vary from week to week. However , the
AAO is not persuaded that the tasks involved in managing a franchise retail store are so varied that it is
impossible to even provide a reasonable estimate of how the beneficiary spends his time. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec . 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Here, while the beneficiary evidently exercises authority over one of the petitioner's retail stores under the
direction of the general manager and president, the record is insufficient to establish that his actual duties
were primarily managerial in nature. The fact that the beneficiary manages a business, regardless of its size ,
doc:s not necessarily establish eligibility for classification as an intracompan y transferee in a managerial or
executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738 , .5739
(Feb. 26, 1987).
As additional evidence of the beneficiary's purported employment as a manager or executive , counsel notes
the beneficiary's managerial authority over two tiers of supervisory employees. The petitioner has not
demonstrated that the beneficiary, as a personnel manager, will be priJPa~ily supervising a subordinate staff of
. professional, managerial, or supervisory personnel. See section 101(a)(44)(A)(ii) ofthe Act. As noted above ;
the petitioner has provided inconsistent descriptions of the petitioner's organizational hierarchy and reporting
structure. The petitioner initially stated that the beneficiary supervises 12 employees and identified them
simply as "assistant managers" and "crew members." The assistant manager position, as initially described ,
was limited to purchasing 'goods requested by the store manager, receiving deliveries, overseeing the "work. "
area" and supervising the preparation of baked goods. :While the assistant manager was apparently responsible
for overseeing food preparation activities and the cleanliness of the work area , the duties did not extend to
overseeing sales transactions , assigning duties to and tra ining subordinates, scheduling employees, or other
tasks normally performed by an employee who is primar ily a first-line supervisor. Most of these duties were
attributed to the beneficiary. Therefore , the petitioner has not clearly established the level of authority
exercised by jts "assistant managers."
While the petitioner added an additional tier of "crew supervisors' .' when responding to .the request for
evidence, the record shows. that these emplo yees received the same wages as the petitioner's "assistant
managers," who both received wages that were only nominally higher than those of the. crew members ,
specifically, an additional $0.50 per hour. When exam ining the managerial or executive .capacity of a
beneficiary, USCIS reviews the totality of the record, including descriptions of a beneficiary's duties and
those of his or her subordinate employees, the nature of the petitioner's business ; ·the employment and
remuneration of employees, and any other facts contributing to a complete understanding of a beneficiary's
EAC 07 009 52268
Page 10
actual role in a business. The evidence must substantiate that the duties of the beneficiary and his or her
subordinates correspond to their placement in an . organization's structural hierarchy; artificial tiers of
subordinate employees and inflated job titles are not probative and will not establish that an organization is
sufficiently complex to support an executive or manager position.' An individual whose primary duties are
those of a first-line supervisor will not be considered to be acting in a mana gerial capacity merely by virtue of
his or her supervisory duties unless the employees supervised ar~ professional. Section 101(a)(44)(A)(iv) of
the Act. The petitioner does not claim to employ professional employees.
In the present matter , the totality of the record does not support a conclusion that the beneficiary primarily
supervises managerial or supervisory employees. Instead, the .record demonstrates that the beneficiary's
subordinates primarily perform the actual day-to-day tasks of operating the petitioner's retail store, rather than
acting as supervisors themselves. Furthermore ; even if the beneficiary does devote some time to overseeing
supervisory employees , the petitioner has not established that this is his primary function, given his
responsibilities for non-qualifying financial and administrative tasks associated with operating a retail store .
Although .the director based his decision partially on the size of the enterprise and the number of staff, the
director did not take into consideration the reasonable needs of the enterprise. As required by section
101(a)(44)(C) of the Act , if staffing levels are used as a factor in determining whether an individual is acting
in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization , .
in light of the overall purpose and stage of development of the organization.
The petitioner operates a retail bakery that is open to the public .for 78 hours weekly , and staffed for an
additional 21 hours per week for opening and closing duties. The petitioner Claims.that its assistant managers
and crew supervisors, who are claimed to relie ve the beneficiary from directly supervising crew members , are
'all employed on a full-time basis: However, during the month in which the petit ion was filed, the assistant
managers worked slightly less than full time , and sometimes just 31-32 hours, while the "crew supervisors"
consistently worked less than 30 hours per week Thus, while the petitioner clai~s to employ one assistant
manager and one crew manager per shift, these employees clearly do not work seven shifts per week, and may
not even work five days per week. The petitioner has not accounted for sufficient subordinate personnel to
perform the non-qualifying tasks associated with these positions on a full-time basis. Therefore , .it is
reasonable to conclude , and has not been shown otherwise , that the beneficiary would be responsible for
fulfilling duties typi cally performed by the assistant manager and crew supervisors when these personnel are
not on duty. '.
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the
context of reviewing the claimed managerial or e xecutive duties. The petitioner must"still establish that the
. beneficiary is to be employed in the United States in a primarily managerial or executive capacity , pursuant to
sections 101(a)(44)(A) and (B) or the Act. As dis cussed above, the petitioner has not established this
essential element of eligibility.
The AAO acknowledges counsel's argument that the director erroneously implied that the beneficiary and his
subordinates are not "real business managers," and his claim that the director was "dismissive" and evidenced
a "lack of appreciation .for the management personnel of an internationally renowned franchise." Counsel
EAC 07 009 52268
Page 11
states that pursuant to the terms of the petitioner's franchise agreement , "management positions are clearly
delineated and all franchises must adhere to a specific structure," while all managers "must attend training
sessions and perform actual m~nagerial duties." However , if the petitioner's organizational structure and the
duties of its employees are all so clearly delineated by the terms of its franchise agreement, it is unclear why
the petitioner has not prov ided a consistent account of its employees' duties or its 'management structure .
Counsel has not offered documentary evidence of the "actual managerial duties" or personnel structure as set
forth in the franchise agreement to support her claims , and the AAO can find no such provisions in the
agreeinent submitted in support of the petition. Without documentary evidence to support the claim, the ,
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel
do not constitute, evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano , 19
I&N Dec. 1 (BIA 1983); Matter ,o fRamirez-Sanch ez, 17 I&N Dec. 503, 506 (BIA 1980). Again, the fact that
the beneficiary manages a business does not necessarily establish eligib ility for classification as an
intracompany transferee in a managerial or executive capacity within the meaning of section 101(a)(15)(L) of
the Act. See 52 Fed. Reg. 5738 , 5739 (Feb. 26, 1987) .
Based on the 'foregoing discussion, the petitioner has not established that the beneficiary would be employed
in a primarily managerial capacity. For this rea son, the appeal will be dismissed.
, '
The second issue to be addressed is whether the petitioner established that the beneficiary was employed by
the foreign entity in a primarily managerial or executive capacity. '
The petitioner noted in its letter dated October 3 ; 200~ that the beneficiary had been employed as a store
manager for the foreign entity prior to his transfer to the United States, but did not provide a description of his
duties.
In the request for evidence issued on November 24, 2006, the director requested a description of the typical
managerial responsibilities performed by the beneficiary abroad, information regarding the job titles and
duties of his subord inates, his level of discretionary authority with the foreign entity , and the amount of time
the beneficiary devoted to managerial versus non-managerial duties.
, In response, the petitioner submitted an 'affidavit from its president, who stated that the beneficiary's duties
included: hiring and firing store employees ; assigning duties and responsibil ities for company workers;
assigning training to per sonnel; determining salaries ,promotions and payment of bonuses; mediating and
resolving personnel conflicts; performing sales analysis and making decisions regarding inventory levels and
purchasing costs; establishing sales, promotions and marketing campaigns ; making marketing and advert ising
decisions ; and negotiating with the foreign entity's lessor.
The petitioner stated that the beneficiary supervised two assistant managers. itwo supervisors and five crew
members, and submitted position descriptions that were identical to those provided for theU .S. employees.
The director denied the petition , concluding that the petitioner failed to demonstrate that the beneficiary was
employed by the foreign entity in a primarily managerial or executive capac ity. The director noted that the
EAC 07 009 52268
Page 12
. ,
position appeared to be identical to his current U .S. position, and emphasized that such position had not been
.shown to involve primarily managerial duties, or rrianagement of managerial or supervisory personnel.
On,appeal, counsel ' emphasized that the instant petition was filed to request an extension of the beneficiary's
L-IA status, thus the service has previously analyzed the beneficiary's employment with the foreign entity and
concluded that it was in a qualifying capacity. Counsel asserts that the petitioner complied with the director's
request by submitting an affidavit describing the beneficiary's managerial duties, and the director had no basis
for "attacking the credibility of the affidavit."
Upon review, the petitioner has not established that the beneficiary was employed by the foreign entity in a
primarily managerial or executive capacity.
As noted by the director, the beneficiary's ' foreign and U.S. positions appear to be essentially identical,
therefore, many of the deficiencies noted above also apply to the petitioner's description of the .beneficiary's
. duties, Contrary to counsel's statements , the director did not "attack the credibility" of the petitioner's. .. . \ ,
president, but did reasonably question whether the "assistant managers" and "supervisors" were performing in
positions that were truly managerial or supervisory in nature. The AAO notes that: basedon the petitioner's
, representations, the foreign entity employed five managers and supervisors to oversee the work of only five
crew members. If the foreign entity's crew members , like their U.S. counterparts , worked on part-time ,
schedules, it .is clear that the "supervisors" would actually be providing the sales and services of the company.
on a regular basis. Counsel has not submitted evidence on appeal to overcome the director's decision. Rather ,
, counsel suggests that US.qs already determined that the beneficiary was employed abroad in a managerial
capacity ~nd thus the director erred by revisiting the issue.
The AAO recognizes that USCIS previously approved an L-IA nonimmigrant visa petition filed by the
petitioner on behalf of the beneficiary for employment as its store manager. ' 'It must be emphasized that each ,
nonimmigrant petition is a separate record of proceeding with a separate burden of proof; each petition must
stand on its own individual merits. See 8 C.F.R. § 103.8(d); 8 C.F.R. § 103.2(b)(16)(ii). The prior
, nonimmigrant approval does not preclude USCIS from denying an extension petition. See e.g. Texas A&M
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004).
Furthermore, If the previous nonimmigrant petition was approved based on the same unsupported ' and
.contradictory assertions that are contained in the current record, the approval would constitute material and
gross error on the part of.the director. The AAO is not required to approve applications or petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous . See,
, e.g. Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm . I.988). It wouldbe absurd to
suggest that CIS or any' agency must treat acknowledged errors as binding precedent. .Sussex Engg. Ltd. v.
Montgomery, 825 F.2d 1084 , 1090 (6th Cir. 1987), cert. denied , 485 U.S. 1008 (1988). The AAO finds that
the director was justified in departing from the previous nonimmigrant approval by ' denying the present
request for an extension of the beneficiary's status.
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
, , , . '
EAC 07 009 52268 .
Page 13
behalf of the beneficiary , the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.) , affd , 248 F.3d 1139 (5th Cir .
2001), cert. denied, 122 S.Ct. 51 (2001) .
Beyond the decision of the director , the AAO notes a discrepancy in the record which raises questions as to
whether the petitioner has maintained a qualifying relationship with the fore ign entity. To establish a
"qualifying 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." Seegenerally section 101(a)(15)(L) of the
Act; 8 C.F.R. § 214.2(1).
The petitioner claims to be an affiliate of the foreign entity based on common ownership by the same four
individuals, with each individual owning a 25 percent interest in both entities. See 8 C.F .R. §
214.2(1)(1)(ii)(K)(2) (defining "affiliate" as "one of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the same share or proportion of each
entity.". However, 'the U.S. company's 2004 IRS Form 1120 , U.S. Corporation Income Tax Return, indicates at
Schedule K, Line 5, that Arie Derzavich owns 50 percent of the company's stock, and at Schedule K, Line 10, that
the company has only three shareholders. It is incumbent upon the petitioner to resolve any inconsistencies in
the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matt er
ofHo , 19 I&N Dec. 582 , 591-92 (BIA 1988). If Mr. Derzavich now owns a 50 ,percent interest in the U .S.
company while the foreign entity continues to be owned by four individuals with no majority shareholder,
.then the two companies no longer have an affiliate relationship as that term is defined in the regulations .
Furthermore, the petitioner has submitted copies of its stock certificates number one, two, six and seven,
whi,ch ostensibly show that the four claimed individual shareholders.each ·owned 25 shares in the company
when it was established in June 1999. The petitioner has not provided a copy of its stock ledger or otherwise
. accounted for stock certificates number three, four or five. Based on these discrepancies and deficiencies, the
evidence of record does not demonstrate that there is a qualifying relationship between .the U.S. and foreign
entities: For this additional reason, the petition cannot be approved.
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 deci sion. See
Spencer Enterpris es, Inc. v. Unital States, 229F . Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd . 345 F.3d 683
(9th Cir. 2003) ; see al so Dar ,:,. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAOreviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if he.or she shows that the AAO abused its discretion with respect to all of the AAO 's enumerated grounds.
See Spencer Enterpris es, hie. v.United States, 229 F . Supp. 2d 1025, 1043 (E .D. Cal. 2001) , affd. 345 F.3d
683 (9th Cir. 2003) .
EAC 07 009 52268
Page 14
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision . In visa petition proceedings , the burden of proving
eligibility for the b~nefit sought.remains entirely with the petitioner. Section 291 of the Act , 8 U.S.C. § 1361.
Here, that burden has not been met .
ORDER: The appeal is d ismissed.