dismissed L-1A Case: Security Systems

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U.S. Department of Homeland Security
20 Massachusetts Ave, N.W., Rrn. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICCOpy
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
JUN 2Q2007Office: TEXAS SERVICE CENTER Date:
Petitioner:
Beneficiary:
SRC 04 170 50481
Petition:
File:
INRE:
IN 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 .
.,~.i:~~~obert p.Z':n, Chief
Administrative Appeals Office
www.uscis.gov
SRC 04 170 50481
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 petition seeking to extend the employment of its president and general
manager 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, a Texas corporation,
claims to be the subsidiary of Me Electronics Co., Ltd., location in Kyoungki-Do, South Korea. The
petitioner claims to be engaged in the manufacturing, marketing and sale of closed circuit security cameras
and related recording equipment for both digital and analog systems worldwide. 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 for an additional two years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been
and will continue to be employed in the United States in a primarily managerial or executive capacity.
The petitioner filed an appeal in response to the denial. On appeal, the petitioner contends that the denial was
contrary to federal case law, and contends that the director placed undue emphasis on the size of the
petitioner's enterprise. In support of these contentions, the petitioner submits a detailed brief.
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 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 (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
SRC 04 170 50481
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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)(14)(ii) also provides that a visa petition, which involved the opening ofa
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)(1)(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 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)(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
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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
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In support of the initial petition, former counsel submitted a letter dated May 28, 2004. Counsel explained
that the beneficiary, as president and general manager, was not a manager overseeing personnel, but rather an
executive directing the organization's North American presence.' Counsel explained that although the
petitioner currently employed only the beneficiary, it anticipated hiring one to two staff members within the
next year. In addition, the petitioner submitted a letter dated May 25, 2004, which provided an outline of the
beneficiary's duties while employed in the United States. The petitioner described her duties as follows:
[The beneficiary] is responsible for and directs marketing, sales, and distribution of [the
foreign organization's] products in North America (and beyond Asia). She has and will
continue to analyze markets, develop and cultivate customer relationships, [and] negotiate
and conclude contracts on behalf of the company.
* * *
Although she will continually liaise with our executive group in Korea, as the sole executive
in our North American operation, she will continue to exercise a wide degree of latitude
and discretion. In short, she will continue to be our decision-making authority in North
America. As mentioned before, [the beneficiary] will receive only limited oversight, and
has the authority to act independently within our organizational framework, which
includes the authority to negotiate and execute binding corporate agreements, establish sales
and marketing plans, and ensure their fulfillment. Additionally, she will have the authority to
hire sales and marketing personnel for the U.S. office, decide on the best method of
increasing market share, and decide what factors can or will impact the company's sales
}Despite the claim that the beneficiary is acting as an executive, Citizenship and Immigration Services (CIS)
normally considers the beneficiary's duties for eligibility under the definitions of both managerial and
executive capacity.
SRC 04 170 50481
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goals. In short, she establishes corporate objectives, ensures their fulfillment, and takes
remedial actions when necessary. She is the key executive to the success of our U.S.
operations.
Emphasis in original.
On June 15, 2004, the director requested additional evidence pertaining to the nature of the U.S. business,
including an organizational chart demonstrating all employees and their positions within the petitioner's
organizational hierarchy as well as evidence of the employment and wages paid to such employees. In a
response dated June 17, 2004, former counsel for the petitioner provided an overview of the petitioner's
current structure. Counsel repeated the contention that the petitioner employed only the beneficiary at the
current time, but anticipated hiring a sales staff in 2005 to "better round out its current sales and marketing
functions." Counsel further stated the following:
The petitioner submits that despite not having employees at the current time, it can
nonetheless meet at least two of the three guidelines for start-up extensions: generation of
significant cash flow and attending a significant customer. We expect the third element,
creation of employment will occur in the second year of business.
On July 1, 2004, the director denied the petition. The director, who reviewed the record to determine
eligibility under both managerial and executive capacity, found that the beneficiary's stated duties had
satisfied neither. The director noted that the nature and structure of the business as currently functioning did
not appear to support the position of a bonafide executive. In addition, the director noted that the petitioner
had not established that the beneficiary would exercise authority over subordinate employees or manage an
essential function or component of the organization. The director concluded by finding that the beneficiary
was primarily performing the tasks necessary for the continued operations of the business, and therefore was
ineligible for the classification sought.
On appeal, the petitioner, acting on a pro se basis, asserts that the director's decision was contrary to federal
case law, and contends that the director unfairly relied on the size of the petitioner's enterprise in reaching the
decision.
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. § 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.
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has
not demonstrated that the beneficiary will be employed in a primarily managerial or executive capacity.
Whether the beneficiary is a manager or executive employee turns on whether the petitioner has sustained its
burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B)
SRC 04 170 50481
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of the Act. Here, the petitioner claims that the beneficiary's duties are exclusively executive, yet the
identified duties of the beneficiary in the record include non-executive tasks. For example, the petitioner
states that the beneficiary "negotiates business contracts" and will eventually "hire and fire personnel." Such
duties are not included in the definition of executive capacity, which former counsel alleged was the proper
capacity of the beneficiary. The record contains no additional evidence or explanation with regard to the
duties of the beneficiary. Merely claiming that the beneficiary is an executive is insufficient to establish
eligibility in this matter. 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) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm.1972)).
The description of duties for the petitioner indicates that she directs the sales, marketing, and distribution
departments, yet the evidence contained in the record confirms that she is currently the petitioner's sole
employee. Former counsel for the petitioner specifically claims, in both his May 28, 2004 letter and June 17,
2004 response to the request for evidence, that the beneficiary is the petitioner's sole employee. As a result,
the beneficiary is the only person who can perform the essential tasks of the petitioner. 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). Absent evidence to the contrary, it
appears that the beneficiary, as the petitioner's sole employee, is engaged in client-related services.
The fact that an individual manages a small business does not necessarily establish eligibility for
classification as an intracompany transferee in a managerial or executive capacity within the meaning of
section 101(a)(44) of the Act. The record does not establish that a majority of the beneficiary's duties have
been or will be primarily directing the management of the organization. The petitioner has not demonstrated
that it has reached or will reach a level of organizational complexity wherein the hiring/firing of personnel,
discretionary decision-making, and setting company goals and policies constitutes significant components of
the duties performed on a day-to-day basis. In fact, the record in its current state indicates that all or the
majority of the beneficiary's duties constitute marketing, sales, or other customer services which are not
traditionally considered managerial or executive duties.
On appeal, the petitioner argues that the director's emphasis on the current size of the petitioning entity was
erroneous. 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, 8 U.S.C. § 1101(a)(44)(C). However, 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). The size of a
company may be especially relevant when CIS notes discrepancies in the record and fails to believe that the
facts asserted are true. Id. Further, in this matter, the regulations provide strict evidentiary requirements for
SRC 04 170 50481
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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(1)(14)(ii)(D).
In this matter, there are no other employees currently on the petitioner's payroll who can relieve the
beneficiary from performing non-qualifying tasks. Furthermore, despite the clear lack of subordinate staff,
the petitioner repeated asserts that the beneficiary directs various departments such as sales and marketing,
thereby suggesting that the functions of these departments are delegated to others. This claim, however,
contradicts the undisputed fact that the beneficiary is the sole employee of the petitioner, and therefore has no
one upon which to delegate such tasks. It is incumbent upon the petitioner to resolve any inconsistencies in
the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of
the visa petition. Id. at 591.
Moreover, the petitioner relies on Mars Jewelers Inc. v. INS., 702 F. Supp. 1570 (N.D. Ga. 1988) and
Johnson-Laird, Inc. v. INS, 537 F. Supp. 52 (D.C. Ore. 1981) in support of the premise that the director erred
in examining the size of the petitioning entity in reaching the decision. However, counsel fails to recognize or
discuss the subsequent holding in Systronics, which, as discussed above, permits CIS to examine an entity's
size in relation to the reasonable needs of the entity. Consequently, counsel's reliance on Mars Jewelers and
Johnson-Laird is misplaced and will not be considered for purposes of this analysis.
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 CIS
regulations that allows for an extension of this one-year period. Although former counsel and the petitioner
both contend that the petitioner will hire additional employees within the next year, this claim is insufficient
to establish eligibility in this matter. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. 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 of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Based
on the evidence furnished, it cannot be found that the beneficiary has been or will be employed primarily in a
qualifying managerial or executive capacity. For this reason, the appeal will be dismissed.
Beyond the decision of the director, the petitioner has failed to establish that it has been doing business for the
previous year. The regulation at 8 C.F.R. § 214.2(l)(1)(ii)(H) defines the term "doing business" 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."
In this matter, the petitioner claims that it is engaged in the manufacturing, marketing and sale of electronic
goods. More specifically, the petitioner indicates that it specializes in security cameras and related recording
equipment. The record in this matter indicates, by the petitioner's own admission, that its revenue is "not on the
books" as a result of the fact that its primary customer wanted its business to be attributed to the foreign entity,
not the petitioner. The petitioner's Form 1120, U.S. Corporation Income Tax Return for 2003 no gross receipts or
SRC 04 170 50481
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sales. Although various invoices, purchase orders and bills of lading are submitted for the record, the U.S.
company appears to be acting merely as an agent for the foreign entity.
The definition of doing business clearly requires the continuous provision of goods and services, yet the
petitioner has failed to submit evidence establishing its business activities for the first year of operations. The
beneficiary was granted a one-year stay in which to open a new office. There is no evidence of any business
activity during this period. The petitioner, therefore, has not established that it was regularly, systematically,
and continuously providing goods and/or services during the entire year preceding the filing of the extension
request. For this additional reason, the visa 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 (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).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
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.