dismissed L-1A Case: Seafood

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: SRC 05 172 51144 Office: TEXAS SERVICE CENTER Date: APR 012IIf1
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. § llOl(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.
·'---·-·-:::-~;4 :::;..
Robert<P':W1e~ann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 172 51144
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its sales 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)(l5)(L). The petitioner is a corporation organized under the laws
of .the State of Florida and alleges to be in the seafood business. The petitioner claims a qualifying
relationship with Suministros Y Servicios Orinoco, C.A. of Venezuela . The beneficiary was initially granted
a one-year period of stay to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay.I
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity .
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal , counsel to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an executive . In support of this assertion , counsel
submits a brief.
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(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 (I)(1)(ii)(G) of this section .
(ii) Evidence that the alien will be employed in an executive , managerial , or specialized
knowledge capacity, including a detailed description of the services to be performed .
(According to Florida state corporate records , the petitioner's corporate status in Florida was "administratively
dissolved" on September 15, 2006. Since the corporation may not carry on any business except that necessary
to wind up and liqu idate its affairs , and the petitioner has not taken steps under Florida law to seek
reinstatement, the company can no longer be considered a legal entity in the United States. See Fla. Stat.
607.1421 (2006). The dissolution of the petitioner calls into question its eligibility for the benefit sought in
the current petition.
SRC 05 172 51144
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(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial , executive or involved specialized knowledge and that the alien's prior
education , training, and employment qualifies him/her to perform the intended
services in the United States; however , the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C .F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l )(ii)(G) of this section ;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(I)(ii)(H) of this section for the previous year ;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation , including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The primary issue in the present matter is whether the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity .
Section IOI(a)(44)(A) of the Act , 8 U.S .C. § IIOI(a)(44)(A) , defmes 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
SRC 05172 51144
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promotion and leave authorization) , or if no other employee is directly supervised ,
functions at a senior level within the organizational hierarchy or with respect to the
function managed ; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 V.S.c. § I 101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization , component , or function ;
(iii) exercises wide latitude in discretionary decision making ; and
(iv) receives only general supervision or direction from higher level executi ves, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act , or primarily executive duties under
section 101(a)(44)(B) of the Act, although on appeal counsel to the petitioner appears to restrict her argument
to the executive classification . 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 defin ition for manager. Given the
lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary is acting either as a
managerial or as an executive and will consider both classifications.
The petitioner described the beneficiary's duties in a letter dated May 31, 2005 as follows:
[The beneficiary] determines price schedules and discount rates with an eye toward
maximizing the company's share of the market and its profits while ensuring that our
customers are satisfied. He will formulate sales policy and marketing strategy by analyzing
the demand for products offered by our company and its competitors within the local market;
[h]e prepares budgets and approves expenditures; [h]e analyzes sales statistics gathered by
the staff to determine our company's profitability; [h]e monitors customer preferences to
determine our focus of sale efforts; [h]e performs evaluations and direct[s] sales programs to
coordinate our product's d istribution. In addition, [the beneficiary] has identified new
business opportun ities and potential markets. Please note that at this initial stage of
operations, [the beneficiary's] main duties are to analyze the market conditions considering
SRC 05 172 51144
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our customer's preferences, determine prices for our products allowing us to compete in the
local market, and represent our company with clients to promote our business .
On June 9 , 2005, the director requested additional evidence. The director requested, inter alia, an
organizational chart, wage reports for employees , and tax documentation.
In response, the petitioner provided an organizational chart devoid of any specific information regarding the
petitioner's employees. The petitioner also provided an IRS Form 941 for the 4 th quarter of 2004 indicating
that the petitioner had no employees and a 2004 IRS Form 1120 indicating that the petitioner was "inactive"
through February 28 ,2005 , almost nine months after the approval of the initial "new office" petition. Finally,
counsel provided a materially identical job description for the beneficiary in her letter dated September 1,
2005.
On September 23,2005 , the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C .F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period . If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
When examining the executive or managerial capacity of the beneficiary , the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above , a petitioner
cannot claim that some of the duties of the position entail executive responsibilities , while other duties are
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions .
The petitioner 's description of the beneficiary 's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition , the petitioner has provided a vague and nonspecific
description of the beneficiary 's duties that fails to demonstrate what the beneficiary does on a da y-to-day
basis. For example , the petitioner states that the beneficiary formulates sales policies and marketing
strategies; prepare budgets ; approves expenditures ; analyzes sales statistics gathered by staff; identifies new
business opportunities; and analyzes market conditions. The petitioner did not, however, specifically define
what policies and strategies will be formulated, disclose details regarding the petitioner's budget; or describe
SRC 05 172 51144
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any expenditures, sales statistics, business opportunities, or market conditions supposedly being analyzed.
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co ., Ltd. v. Sava, 724 F. Supp. 1103 (E .D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir .
1990). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm, 1972).
Moreover, the petit ioner has failed to demonstrate that the beneficiary , or anyone else, has been or will be
employed by the petitioner. Given the lack of any subordinate staff, it must be concluded that the beneficiary
is engaged in performing the tasks necessary to provide a service or produce a product. An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be
"primarily" employed in a managerial or executive capacity . See sections 101(a)(44)(A) and (B) of the Act
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
The record is devoid of any evidence that the petitioner employs any subordinate staff. In addition, the
petitioner's vague job description fails to document what proportion of the beneficiary's duties would be
managerial functions 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 proport ion of his
duties would be managerial , nor can it deduce whether the beneficiary is primarily performing the duties of a
function manager. See lKEA US, Inc. v. Us. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D .D.C. 1999).
Therefore, the record does not prove that the beneficiary will act in a managerial capacity .
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization ." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Given the lack of any subordinate staff, it must be concluded that the beneficiary will engage in
performing the tasks necessary to provide a service or produce a product and will not be engaged in
performing executive duties.
SRC 05 172 51144
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Counsel correctly observes that a company's size alone , without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager or executive.
See § 101(a)(44)(C) of the Act. However , it is appropriate for CIS to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company , or a "shell
company" that does not conduct business in a regular and continuous manner . See, e.g., Systronics Corp . v.
INS, 153 F. Supp . 2d 7, 15 (D.D.C. 2001). Furthermore, the reasonable needs of the petitioner will not
supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity
as required by the statute . See sections 101(a)(44)(A) and (B) of the Act. Accordingly, in this matter, the
petitioner has failed to establish that the beneficiary will be primarily performing managerial or executive
duties, and the petition may not be approved for that reason.
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has established
that the United States operation has been "doing business" for the previous year as defined in 8 C.F .R. §
214.2(l)(l)(ii)(H) . 8 C .F.R. § 214.2(l)(14)(ii)(B). "Doing business" is defined in part as "the regular ,
systematic, and continuous provision of goods and/or services by a qualifying organization." 8 C.F .R. §
214.2(1)(1)(ii)(H).
In this matter, the petitioner has failed to establish that it has been doing during the previous year. The initial
"new office" petition was approved on June 3, 2004. The record is devoid of any evidence that the petitioner
was doing business in a regular , systematic, and continuous manner during its first year in operation. In fact,
the petitioner provided evidence in the form of tax returns and wage reports which demonstrate that the
petitioner was "inactive" through February 28,2005, almost nine months after the approval of the initial "new
office" petition. During that time, the petitioner apparently had no revenue and no employees . Therefore , the
petitioner has not established that it has been doing business for the previous year as required by 8 C .F.R. §
214.2(1)(14)(ii)(B), and the petition may not be approved for this additional reason.
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has established
that the United States entity and the foreign entity are still qualifying organizations as defined in 8 C.F .R. §
2l4.2(1)(I)(ii)(G). 8 C.F.R. § 214.2(1)(14)(ii)(A). Part of the definition of "qualifying organization" requires
that the petitioner establish that the foreign entity is "doing business." 8 C.F.R. § 214.2(1)(1)(ii)(G)(2). In this
matter, the record is devoid of any evidence that the foreign entity is "doing business" as defined in 8 C.F .R. §
214.2(l)(1)(ii)(H). While the petitioner did provide some evidence regarding the operations of the foreign
entity in response to the Request for Evidence , this evidence is not translated . Because the petitioner failed to
submit certified translations of the documents, the AAO cannot determine whether the evidence supports the
petitioner's claims. See 8 C.F.R. § 103.2(b)(3) . Therefore, the evidence is not probative and will not be
accorded any weight in this proceeding . Accordingly, the petitioner has not established that it and the foreign
entity are qualifying organizations due to its failure to establish that the foreign entity is "doing business," and
the petition may not be approved for this additional reason.
The initial approval of an L-l A new office petition does not preclude CIS from denying an ex.tension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx.. 556,
2004 WL 1240482 (5th Cir . 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
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... "
subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision . See
Spencer Ent erprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed .