dismissed L-1A Case: Retail Services

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preventclearly unwarranted
invasionofpersonalprivacy
PUBLICCOP)'
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: LIN 05 13351048 Office: NEBRASKA SERVICE CENTER Date: .1~AR 0 ? 2007
INRE: 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)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been
returned to the office that originally decided your case. Any further inquiry must be made to that
office.
~~hief
Administrative Appeals Office
www.uscis.gov
LIN 05 133 51048
Page 2
. DISCUSSION: The Director, Nebraska 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 seeks to temporarily employ the beneficiary as its president/operations manager in the
United States as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of
the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The U.S. petitioner, a
corporation organized in .the State of Illinois, is engaged in retail services and claims to be the affiliate
of located in The director denied the petition
concluding that the petitioner did not establish that the beneficiary would be employed in the United
States in a primarily managerial or executive capacity at the end of the petitioner's first year of
operations. (,
.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 petitiorier asserts that the
director erred in her decision in terms ofher application of the law, and contends that the petitioner in
fact submitted a comprehensive business plan outlining the proposed structure and employee positions
for the U.S. entity. Counsel further asserts that the director did not take into consideration the
overwhelming evidence provided in the record. In support of these assertions, counsel submits a brief
and additional evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the
criteria outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have
employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized
knowledge capacity, for one continuous year within three years preceding the beneficiary's application
for admission into the United States. In addition, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity ..
The regulation at 8 C.P.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.
(iii) Evidence that the alien has at least one continuous year of full time
employment abroad with a qualifying organization within the three years
precedingthe filing of the petition.
LIN 05 13351048
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(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.
(v) If the petition indicates that the beneficiary is coming to the United States as a
manager or executive to open or to be employed in a new office in the United States,
the petitioner shall submit evidence that: . .
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval of
the petition, will support an executive or managerial position as defined
in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and to
commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
This matter presents two related, but distinct, issues: (1) whether the U.S. entity will be able to support
a managerial or executive position within one year after the petition's approval; and (2) whether the
beneficiary will be employed by the United States entity in a primarily managerial or executive
capacity.
Section lOl(a)(44)(A) of the Act, 8 U.S.c. § 1101(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;
LIN 05 13351048
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(ii) supervises and controls the work of other supervisory, professional, or
managerial employees, or ; .manages an essential function within the
organization, or a departmen~ or subdivision of the organization;
(iii) if another employee or other employees are d irectly supervised , has the
authority to hire and fire or recommend those as well as other personnel
actions (such aspromotion and leave authorization) , or ifno other employee is
directly supervised, functions at a senior level within the organizat ional
. 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 emplo yee 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 unlessthe employees supervised are professional.
Section 101(a)(44)(B) of the Act , 8 U.S.c. § I 10I(a)(44) (B), defines the term "execut ive capacity" as
an assignment within an organizat ion 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 ofthe organ ization , component, or function ;
(iii) exercises wide latitude in discr etionary decision making; and
(iv) rece ives only general supervis ion or direction from higher level executives ,
the board of directors, or stockholders of the organization.
With the initial petition, the petitioner' provided a letter ofsupport dated March 14, 2005 which was
.prepared by the ben eficiary in h is capacity as president of the entity. The letter provided a general
overview of the beneficiary's propo sed duties in the United States as well as a general discussion of
the potential growth of the U.S. entity through its acqu isition of retail outlets. Specifically, the
petitioner stated:
[The pet itioner] requires the services of [the beneficiary] in the executive position as a
President on a temporary basis in the United States. He will be responsible for overseeing
regional market expansion, direct management, organize and control organization's major
operations through other employees. The details of these duties are:
./ Direct the . management of [the petitioner] and establish organizational goals and
policies; .
./ Plan develop and organize general company strategies and exercise discretion over
day-to-day operations of the activity and functions of [the petitioner] ;
LIN 05 13351048
PageS
../ Maintain client relationship by overseeing quality control and fulfillment of client
needs ;
../ . Develop new client relationship and expand business opportunities by overseeing the
provision of the market performed by [the petitioner] ; . .
../ Assess the needs of clients and de velop market research strategies that best meet
clients ' needs;
../ Oversee project pricing and budget management[.]
The petitioner concluded by 'stating that the beneficiary's "temporary expertise is required in the
initial stages of planning , organizing and directing the company."
With regard to the petitioner 's business, documentation was submitted which established that the
, beneficiary, as an individual and not on behalf of the U.S. petitioner, purchased a'convenience store
called Home Decor. Additionally , two franchise agreements between the beneficiary and Tobmar
Investments International" Inc . were submitted , which indicated that 'the benefic iary would operate
two specialty newsstand outlets known as GatewayNewsstands , Finally, it is noted ' for the record
that on the L supplement to the Form 1-129 , the petit ioner indicated that it currently employed only
one person, the beneficiary .I
, On April 5 , 2005, the director requested additional e vidence with regard to the overall business plan of
the petitioner , its primary purpose , and its current financial status. In addition , additional details
regarding the beneficiary 's managerial and/or executive capacity were requested. In a response. dated
June 27 , 2005, the petitioner, through counsel , submitted a letter accompan ied by' a business plan
which addressed the petitione r's intended growth in a generalized manner. No additional details with
regard to the managerial and/or executive nature of the beneficiary 's proposed position were
submitted.
On July 7, 2005 the director denied the petition. The director determined that the evidence in the
record did not establish that the beneficiary would be employed in a primarily managerial or executive
capacity while in the United States and that the petitioner had failed to show that the petitionerwould
grow to the point where it could support a primarily managerial or executive posit ion within the first
year of operations. Specifically , the director concluded that the record contained no evidence that the
petitioner and the foreign entity were involved in the acquisition of the retail outlet s acquired by the
beneficiary. Noting that the purchase of the Home Decor location and the monies tendered pursuant to
the franchise agreement were funds borrowed by the beneficiary , not financed by the foreign entity,
the director concluded that ' a significant investment by the foreign entity was not present.
I Th~ record as a wholeindicates that there are no other employees on staff at the petitioner's office
other than the benefic iary. Specifically , the busine ,ss plan submitted in response to the request for
evidence is dictated by the beneficiary himself in the first person. Furthermore , all alleged agreements
for the acquis ition of retail stores through purchase or franchise agreement are executed by the
beneficiary. Finally , the record indicates, in the business plan; that the petitioner, intends to .eventually
hire U.S. based employees once the instant petition is approved.
LIN 05 133 51048
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Additionally, the director noted that despite' the submission of a business plan in response to the
request for evidence, the petitioner had failed to sufficiently articulate the exact nature of the
petitioner's business plan. In particular, the director noted that 'although the plan discussed the hiring
of staff, there was no specific discussion of what positions would be, filled and of what their duties
would consist, thereby precluding a finding that the beneficiary 'would be relieved from performing
, non-qualifying duties within one 'year. Finally, the director noted that the insufficient documentation
pertaining to the organizational structure of the foreign entity made it impossible to conclude that the
U.S. petitioner would be able to support the beneficiary in' a primarily managerial or executive
capacity within one year.
On appeal, counsel for the petitioner allege's that the director's decision ignored the facts of record and
contends that the purpose of the U.S. operation as well as the duties of the beneficiary were clearly
defined by the evidence submitted prior to adjudication. In the appeal brief, however, counsel restates
portions of the previously submitted description of duties and resubmits the documentation submitted
prior to adjudication, and relies upon his brief statements and this resubmitted documentation for
satisfying the burden of proof in these proceedings.
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically,
upon review of the beneficiary's stated duties and the updated business plan, it appears that the
petitioner has failed to establish that it will be able, to support the beneficiary in a capacity that is
primarily managerial or executive at the end ofthe first year of operations. In addition, the AAO notes
that the description of duties was too vague to ascertain whether, the beneficiary will be acting in a
primarily managerial or executive capacity.
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a
description of the business, its products and/or services, and its objectives. See Matter ofHo, 22 I&N
Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements
for the alien entrepreneur immigrant visa classification, Matter ofHo is instructive as to the contents of,
an acceptable business plan:.
The plan should contain a market analysis, including the names of competing businesses
and their relative strengths and weaknesses, a comparison of the competition's products
and pricing structures, and a description of the target market/prospective customers of
the new commercial enterprise. The plan should list the required permits and licenses
obtained. If applicable, it should describe the manufacturing or production process, the
materials required, and the supply sources. The plan should detail any contracts
executed for the supply of materials and/or the distribution of products. It should
discuss the marketing strategy of the business, including pricing, advertising, and
servicing. The plan should set forth the business's staffing requirements and contain a
timetable for hiring, as well as a job description for all positions.' It should contain sales,
cost, and income projections and detail ' the bases therefor. Most importantly, the
business plan must be credible.
,LIN 05 133 51048
Page 7
!d.
In this case , the bu siness plan submitted by thepetitioner was vague and lacked d~tail with regard to
the petitioner 's planned objectives and timeline for achieving its .goals. Even if the business plan
submitted on appeal was admissible , it is identical to the pre viously-submitted document, thereby ,
providing no clarification with regard to this issue . The petitioner omits any discu ssion of·market
strategy and the relative strengths and weaknesses of the petitioner. Although it contends that it will
hire employees, no specific timeline for hiring is provided, nor is there a detailed description of the
position(s) to be created and what their duties would be. As a result, the petitioner has failed to submit
a detailed and credible business plan.
Furthermore, although documentation was submitted to support the claim that the petitioner has
acquired aconvenience store and will operate two additional stores under a franchise agreement, all of
these undertakings were executed by the benefic iary as an individual , and not by the petitioning entity.
The .lack of tangible evidence establishing that the petitioner, as a legal 'entity, is engaged in these
undertakings prohibits a finding that a legitimate business plan is in 'place. This deficiency in the
record, coupled with the vague job description of the beneficiary , indicates that the petitioner will not
be able to support a managerial or executive position at the end of the first year of operations. While
the beneficiary is the intended president of the company , there is insufficient evidence to show that he
will be acting primarily in a managerial or executi ve capacity during his U.S. employment following
the petitioner's first year of operations.
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) . In this case, the petitioner
vaguely described the beneficiary's duties in the March 14 , 2005 letter. This description of duties did
little to define the beneficiary's obligations to the company. Despite the director 's specific request for
additional information pertaining to the beneficiary's employment capacity in the United States, no
additional evidence was submitted. The regulation states that the petitioner shall submit additional
evidence as the director , in his or her discretion, may deem necessary. The purpose of the request for '
evidence is to elic it further information that clarifies whether eligibility for the benefit sought has been
established , as of the time the petition is filed . See 8 C .F.R. §§ 103.2(b)(8) and (12). The failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition . 8C.F.R. § 103.2(b)(14). The discussion of the beneficiary's role in the United States consists
merely of vague and generalized duties, and essentially attributes all tasks and functions essential to
the petitioner 's operations to the beneficiary alone. As discussed above , no definite hiring plan or
tirneline was submitted which would demonstrate when and how the benefic iary would be relie ved
from performing such non-qualifying duties. While the AAO recognizes the need for a managerial or
executive employee to undertake non-managerial and/or non-executive duties in the wake of a new
company's establishment , the petitioner has failed ' to show how, if at all , the beneficiary will
eventually be relieved from performing these tasks. An employee who primar ily performs the tasks
necessary to produce a product or to provide services is not considered to be employed in a managerial
or executive capacity . Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm .
1988).
LIN 05 13351048
Page ,8
Furthermore, the description of the beneficiary 's proposed duties is vague and not specific enough to
clearly establish the beneficiary 's role in the company, Reciting the beneficiary's vague job
, ' responsibilities or broadl y-cast business objecti ves is not sufficient; the regulations require a detailed ,
description of the beneficiary's daily job duties.' The petitioner has failed to answer a critical question
in this case : What will the beneficiary primarily do on a daily basis ? The actual duties themselves will
reveal the true nature of the employment. Fedin Bros, Co" Ltd" 724 F. Supp . 1103, 1108 (E.D.N .Y.
1989, affd, 905 F. 2d 41 (2d. Cir. 1990). Additionally, the initial description of duties 'seems to
merely paraphrase the regulatory definition of executive capacity. Conclusory assertions regarding the
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or
regulations does not satisfy the petitioner's burden of proof. Fedin Bros . Co., Ltd. v. Sava, 724 F.
Supp. at 1108, affd , 905 F . 2d 41; Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *5
(S.D.N.Y.).
When a new business is established and commences operations , the regulations recognize that a
designated manager or executive responsible for setting up operations will be engaged in a variety of
activities not normally performed by employees at the executive or manager ial level and that often the
full range of managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant
classification during the first year of operations, the regulations require the petitioner to disclose the
business plans and the size of the United States in vestment, and thereby establish that the ' proposed
enterprise will support an executive or managerial position within one year of the approval of the
petition. See 8 C.F .R. § 2l4.2(l)(3)(v)(C) . This evidence should demonstrate a realistic expectation
that the enterprise will succeed and rapidly .expand as it moves away from the developmental stage to
full operations , where there would be an actual need for a manager or executive who will primarily
perform qualifying duties .,
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary
will be employed in a primarily managerial or executive capacity, or that the petitioner will grow to
the point where it will require the services of a full-time manager or executive at the end of its first
year of operations: Spec ifically, there is no clear evidence of the size of the United States investment,
since it appears that the acquired properties were acquired by the beneficiary as an individual and not
in his capacity as an officer of the petitioner. Secondly , there is insufficient evidence of the foreign
entity's organizational structure and its financial ability to remunerate the ,beneficiary. Although
counsel submits additional invoices on appeal to supplement the nature of the foreign ent ity's business
structure, these documents are simply insufficient to establish that the foreign entity is capable of
supporting the U.S. endeavor and financing the benefic iary's salary. Finally , the proposed duties of
the beneficiary , in light of the nature of the propo sed business (i.e. , operating three retail
convenience/specialty stores with no additional employees or specific hiring plan ), are questionable at
best and thus preclude the AAO from determining thatthe beneficiary will be employed in the United
States in a primarily managerial or executi ve capacity by the end of the petitioner 's first year of
operations. For thi s reason, the petition may not be approved .
LIN 05 133 51048
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-: .'..
Beyond the decision of the director, .a related issue 'is whether the petitioner has established that it has
secured sufficient physical premises to house the new office. The petitioner has submitted a copy of'a :
sales contract, evidencing the acquisition of a .retail convenience store, as well as two franchise
agreements for the operation of two newsstands. .All three ' of these documents, however, were
executed by the beneficiary as an individual, and not the petitioner. -No commercial lease for premises
to house the petitioner 's enterprise has been submitted. Based on the insufficiency of the information
furnished, it cannot be concluded that the petitioner has secured sufficient space to house the new
office. _For this additional reason, the petition may.not be approved. ' .
An application or petiti~ri 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), ajJ'd. 345 F.3d683 (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) . '
In visa petition proceedings, the burden of proving' eligibility for-the benefit soughtremains entirely
with the petitioner. Section 291 of the Act, 8 U.S :C.§1361. ' Here, that burden has notbeen met. '
, Accordingly, the director's decision will be affirmed and the petition will b~:denled.
ORDER: The appeal is.dismissed.
, ..