dismissed L-1A Case: Software

PUBLIC COpy
identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: WAC 06 096 50397 Office: CALIFORNIA SERVICE CENTER Date: APR 1 0Z007
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)
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.
I ):apk-f Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 096 50397
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
rejected as untimely filed.
The petitioner, a California corporation, claims to be the parent company of the beneficiary's foreign
employer, located in India. The petitioner states that the United States
entity is engage III e e Ivery 0 ig quality cost effective software solutions. The petitioner filed this
nonimmigrant petition seeking to employ the beneficiary 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 seeks to employ the beneficiary in the position of senior consultant for a
three-year period.
The director denied the petition on August 2, 2006, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it did not appear that the beneficiary supervises a
staff of professional, managerial, or supervisory personnel who will relieve him from performing non­
qualifying duties, and thus the beneficiary will be primarily involved in performing the day-to-day
services essential to running a business. In addition, the director noted discrepancies between the
employees listed on the company's state tax return, Form DE-6, Quarterly Wage and Withholding Report,
and the submitted list of employees supervised by the beneficiary.
The record reflects that the director's decision of August 2, 2006 was sent to the petitioner at its address
of record. The director properly notified the petitioner that any subsequent appeal must be filed with the
California Service Center. According to the date stamp on the Form I-1290B Notice of Appeal, the
proper office received the appeal 54 days later on September 25, 2006. Thus the appeal was untimely
filed. 1
Under the regulations, an affected party has 30 days from the date of an adverse decision to file an appeal.
See 8 CFR § 103.3(a)(2). If the adverse decision was served by mail, an additional three-day period is
added to the prescribed period. See 8 CFR § 103.5a(b). In accordance with 8 C.F.R. § 103.2(a)(7)(i) an
application received in a CIS office shall be stamped to show the time and date of actual receipt, if it is
properly signed, executed, and accompanied by the correct file. For calculating the date of filing, the
appeal shall be regarded as properly filed on the date it is so stamped by the service center or district
office.
1 On September 5, 2006, the AAO rejected the Form 1-290B and returned the form to the petitioner since
the Notice of Appeal must be filed with the office that made the unfavorable decision, in this case, the
California Service Center. See 8 C.F.R. § 103.3(a)(2)(l). The petitioner subsequently re-filed the I-290B
to the correct office without the required filing fee on September 12, 2006, thus the appeal was again
returned to the petitioner. The appeal was finally received as properly filed and date-stamped by
Citizenship and Immigration Services (CIS) on September 25, 2006, which was 54 days after the date of
the decision.
WAC 06 096 50397
Page 3
Moreover, in reviewing the merits of the appeal, the instant petition was properly denied. On appeal,
counsel for the petitioner contends that it was erroneous for CIS to verify the existence of the
beneficiary's subordinates using California Form DE-6, Quarterly Wage and Withholding Report. The
petitioner asserts that the beneficiary's "activities are national in nature and his skills are required in States
other than California as well." The petitioner asserts that the beneficiary is working in Blue Bell,
Pennsylvania, as well as his primary location in Southborough, Maine and thus the beneficiary's
subordinates are not working in California and therefore are not listed on the California Form DE-6,
Quarterly Wage and Withholding Report. In addition, the petitioner asserts that the beneficiary is
managing an essential function of the company. Finally, the petitioner asserts that the beneficiary was
previously granted L-1 classification.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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.
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states
that the beneficiary's duties include "building and maintaining a good relationship with the client and
understanding client expectations"; "coming up with strategies to meet client expectations"; "interfacing
with offshore to ensure quality and timely deliveries"; and "working with the client on new
opportunities/assignments which contribute to the growth of the account." The petitioner did not,
however, define the beneficiary's goals and policies, or clarify the role of the subordinates that the
beneficiary will supervise. Reciting the beneficiary's vague job responsibilities or broadly-cast business
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the
course of her daily routine. The actual duties themselves will reveal the true nature of the employment.
Fedin Bros. Co., Ltd. v. Sava , 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir.
1990).
The job description also includes several non-qualifying duties such as the beneficiary will be responsible
for ""increasing revenues from existing accounts through Client Management, Manage relationship with
SAP"; "managing the customer relationship at senior management levels"; "customer creation for new
products offerings and take case specific profitability decision"; and "develop and manage key accounts
and orchestrate post-sales professional services." In reviewing the brief job descriptions of the
beneficiary's subordinates, it appears that the beneficiary is the only person that interacts with the
customer and handles customer requests. Thus, it appears that some portions of the beneficiary's time
will be devoted to non-managerial duties associated with developing and marketing the services of the
business rather then directing such activities through subordinate employees. Based on the current record,
the AAO is unable to determine whether the claimed managerial duties constitute the majority of the
beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or
operational duties. The petitioner's description of the beneficiary's job duties does not establish what
WAC 06 096 50397
Page 4
proportion of the beneficiary's duties is managerial in nature, and what proportion IS actually non­
managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).
The petitioner submitted an organizational chart indicating that the beneficiary will supervise two project
managers, eleven team leaders, four project leaders, one onsite coordinator, and one senior designer. In
addition, the petitioner submitted with its response to the director's request for evidence a copy of the
California Form DE-6, Quarterly Wage and Withholding Report, for the quarter ended March 31, 2006.
As noted by the director, none of the individuals that will be supervised by the beneficiary are listed on
the company's quarterly report. On appeal, the petitioner asserts that the beneficiary works in several
states, including Pennsylvania and Maine, and thus it was erroneous to confirm the employment of the
beneficiary's subordinates be reviewing California Form DE-6, Quarterly Wage and Withholding Report.
However, the petitioner did not submit any documentation evidencing that these individuals are actually
employed by the U.S. company. The petitioner did not provide any financial documents for the U.S.
entity, which would show salaries, paid to the employees, tax forms, or financial statements. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
On appeal, the petitioner asserts that the beneficiary is managing an "essential component with our clients
and his duties include building and maintaining corporation relationships" and he is responsible for
"strategizing with clients to determine staffing and operational needs." The term "function manager"
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but
instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined
by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the
petitioner must furnish a written job offer that clearly describes the duties to be performed in managing
the essential function, i.e. identify the function with specificity, articulate the essential nature of the
function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential
function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary manages the function rather than performs the duties related
to the function. An employee who primarily performs the tasks necessary to produce a product or to
provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v.
I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner did not provide
evidence that the beneficiary manages an essential function.
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the
development functions for the business. The fact that the beneficiary has been given a managerial job
title and general oversight authority over the business is insufficient to elevate his position to that of a
"function manager" as contemplated by the governing statute and regulations.
WAC 06096 50397
Page 5
Based upon the lack of a comprehensive job description, the beneficiary's apparent performance of many
non-managerial duties, and the lack of evidence of the company's staffing levels, it cannot be concluded
that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity. Therefore,
the director's decision was appropriate based on the evidence submitted.
Furthermore, the petitioner states on appeal that the beneficiary has previously been granted L-1A
classification. The director's decision does not indicate whether he reviewed the prior approvals of the
other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same
unsupported and contradictory assertions that are contained in the current record, the approval would
constitute material and gross error on the part of the director. The AAO is not required to approve
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals
that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593,
597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors
as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert.
denied, 485 U.S. 1008 (1988). The prior approvals do not preclude CIS from denying an extension of the
original visa based on reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed.
Appx. 556, 2004 WL 1240482 (5th Cir. 2004).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
Any appeal that is not filed within the time allowed must be rejected as improperly filed. 8 C.F.R. §
103.3(a)(2)(v)(B)(l).
ORDER: The appeal is rejected.