dismissed L-1A Case: Security Doors

tdentifyingdCl.W 181~ted to
preventClearly tiD warranted
invasionofpersoaalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services ~
PI
File: LIN 0409653785 Office: NEBRASKA SERVICE CENTER Date: JUl 0 5 2001
INRE:
Petition:
Petitioner:
Beneficiary:
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)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~
. bert P. Wiemann, Ch r
.. ..
.ministrative Appeals Office
I
www.uscis.gov
LIN 04 096 53785
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its managing director as
an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner, an Illinois corporation, states that it is
engaged in the business of selling security and fire-proof doors. The petitioner claims that it is the subsidiary
ofNamyoung Co. Ltd, located in Korea. The beneficiary was initially granted a one-year period of stay in the
United States to open a new office and and the petitioner now seeks to extend the beneficiary's stay for two
additional 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 petitioner had
been doing business for the prior year.
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, the petitioner asserts that the company has been the
victim of a "corporate scam" that has delayed its plans, but notes that the problems have been solved and it
intends to staff the U.S. company "as soon as an order contract is signed." The petitioner further asserts that
while the petitioner does not have any direct employees , it participates in the Korean Small Business
Corporation "U.S. Incubator program ," for new Korean U.S. subsidiaries, which provides marketing support
to the petitioner and other participating companies. Finally , the petitioner asserts that the beneficiary is
employed in a managerial capacity, and states that it previously provided evidence that it is conducting
business in the United States. The petitioner submits a brief and additional documentary evidence in support
of the appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 capac ity, 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)(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 (1)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined III
paragraph (1)(l)(ii)(H) of this section for the previous year ;
LIN 04 096 53785
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(C) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The first issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(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
LIN 04 096 53785
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(iv) receives only general supervision or direction from higher level executives, the board
of directors , or stockholders of the organization .
The nonimmigrant petition was filed on February 19, 2004. The petitioner stated on Form 1-129 that the
beneficiary would serve as its managing director under the extended petition and indicated the number of
current employees as "none." In a supporting letter dated February 13, 2004, the petitioner described the
beneficiary's role as follows:
[The Beneficiary's] responsibilities include marketing and sales in North America, recruiting ,
hiring , training and supervising U.S. staff , managing all financial affairs of the company ,
exploring opportunities for joint ventures and product licensing , and building a distribution
agent network.
In a separate statement , the petitioner provided the following description of the beneficiary's duties :
• Marketing and merchandising in the world as well in the U.S.
• Getting the information of new trend.
• Finding the good American company to share [petitioner's] patent.
• Applying the U.S. code & U.L. certification.
• Marketing to American architectural firms.
• Participate in builder's fair in North and South America
• Develop appropriate operating strategies.
• Hire and train a staff adequate to generate and service sales[.]
The petitioner stated that the U.S. company plans to hire a total of five staff "next year" to fill marketing,
engineering and administrative positions.
On March 22, 2004 the director issued a request for the missing initial evidence required by 8 C.F.R. §
214.2(l)(14)(ii), including a statement describing the staffing of the U.S. company, evidence of wages paid to
employees, and a detailed statement of the beneficiary's job duties.
In the response letter dated June 9, 2004, the petitioner included the following description of the beneficiary's
proposed duties under the extended petition:
• Contact potential customer
• Coordinate import / export operation
• Provided information to [foreign organization] (Korea Office) on regulatory environment to
overseas market
• Interview and hire necessary sales and support staff
• Train and evaluate staff
• Develop relationships with freight forwarding companies
• Report to act on behalf of shareholders
• Manage company finances and liquidity
LIN 04 096 53785
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• Product sales and product requirements
• Meet annual sales and profitability targets
• Participate in builder's fair in North America
• Marketing to American architectural firm
• Oversee general administration and maintenance of a customer database
• Finding a good American company to share [petitioner's] patent
The petitioner indicated that it did not hire any employees because it had not yet made any income in the
United States. The petitioner submitted its IRS Form 1120, U.S. Corporation Income Tax Return for 2003,
which shows no income and no wages paid to employees, officers or outside staff.
On August 30, 2004, the director denied the petition. The director determined that the petitioner had failed to
establish that the beneficiary would be employed in a primarily managerial or executive capacity under the
extended petition. The director noted that many of the beneficiary's stated responsibilities are not managerial
or executive in nature, and that the petitioner had not established that the beneficiary will manage a function
or a subordinate staff of professional, managerial or supervisory personnel who would relieve him from
performing the services of the company. The director further observed that there was no evidence that the
beneficiary functions at a senior level within an organizational hierarchy other in position title.
On appeal, the petitioner states that the beneficiary does fulfill a managerial role in the U.S. business, noting
that he "has done his best under difficult conditions," has participated in product exhibitions, and has been
working in conjunction with local firms to create business opportunities. The petitioner also emphasizes that it
participates in the Korean Small Business Corporation (SBC) operated by the Korean government, which
supports select U.S. subsidiaries of Korean companies. The petitioner states that SBC has three Korean and
four U.S. marketing experts who are available to the petitioner when requested and who "act as employees" of
the U.S. company in assisting with marketing strategy, market analysis, marketing research, initial contact
services and documentation services. The petitioner submits a letter from the SBC USA Office confirming
that the petitioner is an existing member of its "Incubator Program," and eligible to receive marketing and
secretarial services offered by SBC.
The petitioner asserts that in addition to the SBC personnel, it pays KOTRA (Korea Trade and Investment
Promotion Agency) offices in Los Angeles, Chicago and Vancouver to analyze the U.S. and Canadian
market. The petitioner states that these offices hire specialists who periodically submit market reports to the
beneficiary. In support of the appeal, the petitioner provides letters from the KOTRA offices in Chicago and
Los Angeles. Each office confirmed that the petitioner had requested a marketing and research report.
Upon review, the petitioner's assertions are not persuasive and the decision of the director will be upheld.
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.
LIN 04 09653785
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The petitioner has provided vague and nonspecific descriptions of the beneficiary's duties that fail to
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties include "getting information of the new trend," "meet annual sales and profitability
targets," and "develop appropriate marketing strategies." The petitioner did not, however, define the
beneficiary's goals, policies, or clarify who will actually perform the duties necessary to provide the product
or service of the petitioner. 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), ajf'd, 905 F.2d
41 (2d. Cir. 1990).
In addition, the petitioner describes the beneficiary's proposed duties under the extended petition as
coordinating import/export operations, contacting potential customers, product sales, determining product
requirements, making sales calls, marketing the petitioner's products, general administration of the company,
managing company finances, and maintaining a customer database. Since the beneficiary will market and sell
the product, and coordinate import and export operations, he will be performing tasks necessary to provide a
service or product and these duties will not be considered managerial or executive in nature. 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 Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). Similarly, the beneficiary's proposed
responsibilities for coordinating import and export operations, liaising with freight forwarders, database
maintenance, providing reports on the U.S. regulatory environment, and "general administration" do not fall
within the statutory definitions of managerial or executive capacity and can not be considered qualifying
duties.
The definitions of executive and managerial capacity have two specific requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Here, while the beneficiary evidently exercises
discretion over the U.S. company as its sole employee, the evidence does not establish that his actual duties
are primarily managerial or executive in nature. The actual duties themselves reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990).
The AAO acknowledges the petitioner's claim that the beneficiary will interview, hire and supervise staff in
the future. However, the regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States
operation one year within the date of approval of the petition to support an executive or managerial position.
There is no provision in U.S. Citizenship and Immigration Services (USCIS) regulations that allows for an
extension of this one-year period. If the business is not sufficiently operational after one year, and does not
have a subordinate staff to relieve the beneficiary from performing the day-to-day non-qualifying duties
associated with operating its business, the petitioner is ineligible by regulation for an extension. In the instant
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly
LIN 04 096 53785
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managerial or executive position , as it did not employ any subordinate staff as of the date the petition was
filed. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or
beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp. , 17 I&N Dec. 248
(Reg. Comm . 1978); Matter ofKatigbak, 14 I&N Dec. 45 , 49 (Comm. 1971).
On appeal, the petitioner asserts that the beneficiary does in fact supervise marketing staff employed by SBC
and KOTRA. The letters submitted are not sufficiently detailed to constitute evidence of the beneficiary's
managerial capacity. At most, it appears that the beneficiary requested two market research reports from
external organizations within the previous year. The petitioner's claim that these organizations work under the
beneficiary's supervision is not adequately supported . 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)). The petitioner's evidence falls short of establishing that the petitioner utilizes direct
employees or contractors to relieve the beneficiary from performing the routine functions of the petitioner's
business on a day-to-day business , particularly in light of the beneficiary's proposed job description, which
includes primarily non-managerial duties.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into
account the reasonable needs of the organization, in light of the overall purpose and stage of development of
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing
levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). Again, the regulation at 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 USeIS regulations that allows for an
extension of this one-year period. As noted above, 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.
Although the petitioner appears to dispute the director's reliance on the petitioner's staffing levels, there is no
indication in this matter that the director did not consider the reasonable needs of the organization. On the
contrary, it appears the reasonable needs were considered, and the director concluded that the petitioner was
incapable based on its overall purpose and stage of development to support a primarily managerial or
executive position as defined by sections 101(a)(44)(A) and (B) of the Act. Contrary to the petitioner's
assertions, the record does not establish that the beneficiary was relieved from primarily performing non­
managerial duties associated with the company's sales , marketing , advertising, customer service, financial,
and administrative functions.
Collectively , the lack of a subordinate staff brings into question how much of the beneficiary 's time can
actually be devoted to the claimed managerial or executive duties. As stated in the statute, the beneficiary
must be primarily performing duties that are managerial or executive. See sections 101(a)(44)(A) and (B) of
the Act. 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
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sections 101(a)(44)(A) and (B) of the Act , 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner
may justify a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to
90 percent , but those needs will not excuse a beneficiary who spends the majority of his or her time on non­
qualifying duties. The AAO has long interpreted the regulations and statute to prohibit discrimination against
small or medium size businesses. However, the AAO has also consistently required the petitioner to establish
that the beneficiary's position consists of primarily managerial and executive duties. As discussed above, the
petitioner has not established this essential element of eligibility.
While the AAO recognizes that the beneficiary exercises discretion over the day-to-day affairs of the
business , the fact that the beneficiary owns and manages a business does not necessarily establish eligibility
for classification as an intracompany transferee in a managerial or executive capacity within the meaning of
sections 101(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738 , 5739 (Feb . 26, 1987). The actual duties
themselves reveal the true nature of the employment. See Fedin Bros. Co. , Ltd. v. Sava, 724 F. Supp. at 1108.
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in a
managerial or executive capacity under the extended petition. For this reason , the appeal will be dismissed.
The second issue in the matter is whether the petitioner established that it has been doing business for the
previous year as required by 8 C.F.R. § 214.2(l)(14)(ii)(B). The term "doing business" is defined in the
regulations as "the regular, systematic, and continuous provision of goods and/or services by a qualifying
organization and does not include the mere presence of an agent or office of the qualifying organization in the
United States and abroad." 8 C.F.R. § 214.2(l)(l)(ii)(H).
At the time of filing , the petitioner indicated that during its first year of operations, it participated in two trade
shows , placed advertisements in magazines, prepared a UL certification for its fire door , prepared a patent
application for a printing process for metallic surfaces , and tried to contact distributors and representatives. In
response to the director's request for evidence that the company has been doing business , the petitioner
submitted its 2003 IRS Form 1120, U.S. Corporation Income Tax Return. A single tax return, however , is not
sufficient to demonstrate that the petitioner is engaged in the regular , systematic , and continuous provision of
goods or services. In this case, the tax return submitted shows that the petitioner had no gross receipts of
sales for the prior year and assets of $655. Therefore , the tax return supports a conclusion that the petition
had not been doing business as defined in the regulations as of the end of 2003.
Further, as of June 9, 2004, when the petitioner responded to the request for evidence, the petitioner stated
that it did not yet have any income from its business operations. On appeal, the petitioner implies that it still
has not received its first order for goods as of September 2004, but mentions for the first time that the
company "was the victim of a corporate scam" and that "the accident" delayed its plans. The petitioner
references "rave reviews from leading firms in the U.S. ," and states that several contracts were being
negotiated before the "incident" had a serious impact on the firm, causing it to change its plans. The petitioner
states that the "problem" has been solved and the petitioner will hire employees when an order contract is
signed. The petitioner again stresses that the beneficiary attended product exhibitions , "worked hard to survey
the market ," and "has been working in conjunction with many local firms to create business opportunities."
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The petitioner's assertions are not persuasive. The petitioner neither explained nor provided documentary
evidence of the "scam," "accident," or "incident," which apparently prevented the company from commencing
operations in the United States, nor has it clarified why such alleged problems were not mentioned at the time
the petition was filed or when responding to the director's request for evidence. 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. at 165.
The petitioner has not submitted evidence that it has been doing business as defined in the regulations at any
point since the beneficiary was granted L-l A status on May 1, 2003. The petitioner's participation in two
product exhibitions or trade fairs and ambiguously described collaborations with local firms "to create
business opportunities" do not rise to the level of doing business for the purpose of this visa classification.
After one year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it
has been doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. §
214.2(l)(l4)(ii)(B). The petitioner has not submitted evidence on appeal to overcome the director's
determination on this issue. Accordingly, the appeal will be dismissed.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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.
ORDER: The appeal is dismissed.