dismissed L-1A Case: Retail Clothing

identifYingdatadeletedto
preventclearlyunwarranted
iDvllioDofpenoaal priYICY
PUBUCCOPy
U.S. Department!)'f H(llni:lland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and IIIlI)jigration
Services
File: WAC 05 071 50722 Office: CALIFORNIA SERVICE CENTER Date: APR 0',"
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. § 110l(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 .
._--~
~ ~,,/
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 071 50722
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to. extend the employment of its president and
general·manager as an L-l A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(aXI5)(L). The petitioner is a corporation
organized under the laws of the State of California and is allegedly engaged in the business of operating retail
clothing stores. The petitioner claims a qualifying relationship with Daewoo Motors Jisan Co., Ltd., located
in South Korea. The beneficiary was granted a two-year period of stay in 2003. The petitioner now seeks to
extend the beneficiary's stay for an additional three years.
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 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 the record establishes
that the beneficiary will be primarily employed in a managerial or executive capacity.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(lX3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
WAC 05071 50722
Page 3
same work which the alien performed abroad.
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 101(a)(44XA) of the Act, 8 U.S.C. § IlOI(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 lOl(a)(44)(B) of the Act, 8 U.S.c. § 1l01(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 IOI(a)(44)(B) of
the Act, and implies that the beneficiary may be acting in both capacities. 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
WAC 05071 50722
Page 4
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 a letter dated December 29,2004 appended to the initial 1-129 petition, the petitioner described the
beneficiary's job duties as follows:
[The beneficiary] oversees and directs all company operations and personnel. He works with
prospective partners and customers to ensure the full and proper use of our resources and
assets; he negotiates contracts and acts as a liaison with the parent company. Moreover, he
sets the objectives and policies for our U.S. operations and is engaged in investigating and
developing new and increased business operations in the United States. [The beneficiary] has
full authority to direct and implement company goals and objectives, hire and dismiss
personnel, and to carry out the general activities of the company. Thus, he oversees,
manages, and controls the purchasing and sales activities of our two U.S. retail stores and is
responsible to the board of directors and shareholder in Korea to pursue additional business
activities and to ensure that we have a profitable and long term commitment to the United
States.
On January 3·1, 2005, the director requested additional evidence. Specifically, the director requested an
organizational chart describing the petitioner's managerial hierarchy and staffing levels including a job
description for all employees under the beneficiary's supervision; wage reports; and a description of the
beneficiary's day-to-day duties for the past six months.
In response, counsel to the petitioner submitted a letter dated April 12, 2005 providing the following
additional information regarding the beneficiary's job duties:
Executive Capacity: [The petitioner] is a small business development company currently
with two small retail clothing stores. The principal, [the beneficiary], is the president of[the
petitioner] and works closely with the parent company in Korea to investigate and develop
new business opportunities in the United States. In addition to his role as president, he works
[as] the general manager over the operations and employees of the two retail stores. So far,
over the past three years, [the beneficiary], through [the petitioner], has established and
operated these two stores and is actively investigating additional retail and trade ventures..
Therefore, he directs the entire operations of the corporation, sets its policies and objectives,
investigates and makes decisions regarding investments and business ventures, represents and
acts on behalf of the parent company in the United States, and manages the
operations/personnel of the two retail stores. Additionally, [the beneficiary is on the board of
directors of the parent company and possesses authority to act on its behalf in the U.S.
Specifically, [the beneficiary) has taken steps to establish goals and policies by determining
the investment into the two retail stores. Moreover, he is currently reviewing additional trade
opportunities in the automotive industry, after the integration of General Motors and Daewoo
WAC 05 071 50722
PageS
Motors. He is authorized to dedicate foreign capital to worthy ventures and, with regard to
the two retail stores, has used his discretion and authority to dedicate over $100,000 worth of
overseas ftmds to the U.S. operations and is able to use (the petitioner's] assets and/or
additional foreign capital to fund any new ventures. [The beneficiary's] decisions have been
ratified by the parent company and he has full discretion and authority to oversee, direct, and
manage the U.S. operations and is responsible for its success.
* * *
In addition to executive duties as described above, (the beneficiary] oversees the operation of
the two retail stores; he supervises a store manager and workers and determines the inventory
budget, hiring, merchandise, and sales/marketing strategies of the stores. He oversees or
directs the placement of advertisements, makes final decisions regarding the types and
quantities of merchandise, hires professions [sic] in the legal and accounting areas, and
supervises the actions of his employees. He is responsible for the overall operation of the
stores and ensures their profitability through assignment to subordinates and by making
decisions and by overseeing and controlling the financial and control systems, as well as the
sales and marketing efforts.
Approximately Y2 of (the beneficiary's] time is spent in an executive capacity, evaluating
policies, objectives, goals, new ventures, and coordination with the parent company. The
other half of (the beneficiary's] time is spent as the overall manager of two retail stores,
supervising the stores [sic] operations, functions, employees, and methods of revenue. Over
the past year, [the beneficiary] has set goals to improve revenues by determining marketing
strategies, merchandise type and quantity, and hiring needs. He has made decisions to pursue
new business options related to the merchandising of automobile accessories and products,
and spends a portion of his work week meeting with new business clients, vendors, and in
coordinating U.S. efforts with Korea. Additionally, he is physically present at the two retail
stores on a regular basis, reviewing merchandise quality, consulting with personnel, and
negotiating with vendors, etc. He reviews and makes decisions regarding general business
activities, including administration, sales, and logistics, and possesses general decision
making authority over the day to day activities and over all long term issues related to the
retail stores.
While the petitioner failed to provide an organizational chart or job descriptions for the subordinate
employees, the petitioner did provide wage reports, which reveal that the petitioner employed and
compensated three people, including the beneficiary, during the quarter immediately preceding the filing of
the extension petition.
On or about July 8, 2005, the director denied the petition. The director determined that the petitioner failed to
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
WAC 05 071 50722
Page 6
On appeal, the petitioner asserts that the director erred and that the record establishes that the beneficiary will
be primarily employed in a managerial or executive capacity.
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 2l4.2(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. [d. 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.
In this matter, the petitioner asserts that the beneficiary spends 50% of his time managing a two-location,
three-employee retail business and the other 50% of his time focusing on his "executive duties." However,
the petitioner has failed to establish that the beneficiary is, and will continue to be, primarily employed as a
manager or as an executive.
As a threshold issue, the petitioner's description of the beneficiary's job duties renders him ineligible for the
classification sought. The petitioner clearly describes the beneficiary as spending half of his time managing a
retail business and half of his time focusing on "executive" duties. However, it must be established that a
beneficiary is "primarily" employed either as an executive or as a manager (see supra). A beneficiary who
splits his time between the two classifications is ineligible under the regulations. Moreover, the petitioner has
not provided an organizational chart or job descriptions for the subordinate employees even though the
director specifically requested this information in the Request for Evidence. Failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. §
103.2(b)(l4). Therefore, for these reasons alone, the AAO will dismiss the appeal for failure to establish that
the beneficiary will be primarily employed in an executive or managerial capacity.
Regardless, the petitioner has failed to establish that the beneficiary has been or will act in a "managerial"
capacity. In support of its application, the petitioner has provided a vague and nonspecific description of the
beneficiary's duties that fails to demonstrate what th~ beneficiary does on a day-t<rday basis. For example,
the petitioner states that the beneficiary's duties include setting goals to improve revenues and negotiating
with vendors. However, the petitioner does not explain its goals or reveal the substance of the negotiations.
Equally importantly, other "management" duties ascribed to the beneficiary, such as reviewing merchandise
quality and placing advertisements, likely involve the performance of administrative or operational tasks. As
the petitioner only employs two subordinate employees, it has not been established that the petitioner has
sufficient staff to relieve the beneficiary of the need to engage in performing non-qualifying tasks. 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
WAC 05 071 50722
Page?
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see
also Matter of Church Scientology Inti., 19 I&N Dec. 593, 604 (Conun. 1988). Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the· burden of proof in these
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics are
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros.
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
The petitioner also failed to establish that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or manage an essential function within the organization.
As explained above, the beneficiary appears to manage a two-location, three-employee retail business. While
the petitioner has provided wage reports confirming its employment of other employees, the petitioner has not
provided job descriptions or educational levels for these other employees nor has the petitioner provided an
organizational chart. Given the lack of evidence, the beneficiary would appear, at most, to be a first-line
supervisor, the provider of actual services, or a combination of both. 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 International, 19 I&N Dec. at 604. Since the record fails to reveal the educational or skill level
of the subordinate employees, it cannot be determined if they rise to the level of professional. employees.
Therefore, the record does not prove that the beneficiary will be acting in a managerial capacity.!
Similarly, the petitioner has failed to prove that the beneficiaryrhas been or will act in an "executive" capacity.
The statutory definition of the term "execl;ltivecapacity" focuses on a person's elevated position within a
complex organizational hierarchy, including major components or functions of Jhe organization, and that
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a
!While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless does not support this position. 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(1X3Xii). 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 beneficiary's job description is
so vague that it is not possible to determine what proportion of his duties would be managerial and what
proportion would be non-managerial. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
managerial, nor can it deduce whether the beneficiary will be primarily performing the duties of a function
manager. See lKEA Us, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C 1999).
WAC 05 071 50722
Page 8
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that
organization. Inherent to the definition, the organization must have a subordinate level of employees for the
beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the
organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an
executive under the statute simply because they have an executive title or because they "direct" the enterprise
as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary
decision making" and receive only "general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization." Id.
As indicated above, the petitioner has provided a vague, nonspecific description of the beneficiary's duties
which fails to explain what the beneficiary does on a day-to-day basis. For example, the petitioner states that
the beneficiary's "executive" duties include directing the entire operation of the corporation; setting policies
and objectives; investigating and making decisions regarding investments and business ventures; and
representing and acting on behalf of the parent company in the United States. However, the petitioner failed
to describe the petitioner's policies and objectives, its business ventures, and what the beneficiary must do to
represent the parent company other than manage two retail clothing stores. While the petitioner did assert that
the beneficiary has been investigating opportunities related to the merchandising of automobile accessories
and products, the petitioner failed to provide any details regarding this investigation and did not reveal the
amount of time the beneficiary devotes to this potential opportunity. 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. The petitioner has not established that the
beneficiary, who apparently manages a two-location, three employee retail business, is employed as an
executive. Without a subordinate staff to relieve the beneficiary of the need to perform the day-to-day
operations of the enterprise so he may primarily focus on the broad goals and policies of the organization, it is
not credible that the beneficiary would be employed primarily in an executive capacity.
It is appropriate for Citizenship and Immigration Services (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. § 214.2(1)(3).
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been
employed abroad full-time in a position that was managerial, executive, or involved specialized knowledge
for at least one continuous year. 8 C.F.R. § 214.2(lX3)(iii)-(iv). The record is devoid of any evidence that the
beneficiary was employed abroad for the requisite time or, if so employed, that this employment was in a
position that was managerial, executive, or involved specialized knowledge. For this additional reason, the
petition may not be approved.
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign entity have a
WAC 05071 50722
Page 9
qualifying relationship because the petitioner has failed to establish that the foreign entity is currently doing
business. See 8 C.F.R. § 214.2(lX3)(i); 8 C.F.R. § 214.2(l)(lXii)(G)(2). While the petitioner submitted
evidence of business activity abroad, all of this evidence predates both the instant petition and the original L­
1A petition approved for the beneficiary (WAC 03 078 50480). The record is devoid of any evidence of
current business activity. For this additional reason, the petition may not 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 decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (B.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.