dismissed L-1A Case: Spice Import And Distribution

~·_CIeIeeId to
preventclearlyunwllTlDted
invasionofpenonal privacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u S. Citizenship
and Immigration
Services
File: WAC 03 259 51145 Office: CALIFORNIA SERVICE CENTER Date: SE.P 0 '1 2001
IN RE: Petitioner:
Beneficiary:
Petition: 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)
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.
~-.::====r-~
R~a~,Chief
Administrative Appeals Office
www.uscis.gov
WAC 0325951145
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president 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. § 11 Ol(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly an importer and distributor of spices and related items.
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 or manager.
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 (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
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
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.
WAC 03 25951145
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Section 101(a)(44)(A) of the Act, 8 U.S.C. § llOl(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 l01(a)(44)(B) of the Act, 8 U.S.C. § l10l(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.
Although the petitioner asserts in the petition that the beneficiary will be performing primarily executive
duties under section 101(a)(44)(B) of the Act, counsel implies on appeal that the beneficiary may be
performing executive or "functional" manager duties under section 101(a)(44)(A) of the Act. A petitioner
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the petitioner is
asserting that the beneficiary will be performing either executive or managerial duties and will consider both
classifications.
The petitioner described the beneficiary's job duties in a letter dated September 12, 2003 appended to the
petition as follows:
WAC 0325951145
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[The beneficiary] will be the individual responsible who will continue to direct and control
the management of our business and she will decide on our policies specifically as it refers to
the type/quantity/quality of the spices and/or other product we may import/distribute or
export. [The beneficiary] will make all decisions as regards contracts that we may enter into
and will so attend to planning and developing the overall business of our corporation[.] She
will be responsible for the hiring and firing of all managerial/supervisory staff required and
will make the ultimate decisions on other workers that management may wish to hire.
[The beneficiary] continues to will [sic] direct and advice [sic] on the methods required
developing and increasing the business of the corporation. She will continue to make all
decisions, policy and other executive level decisions in her discretion.
[The beneficiary] will continue to sign all domestic and international contracts and her
signature will be binding on our corporation in view of the authority that will be vested in her
as President and Chief Executive Officer. She will report to the Board of Directors from time
to time on the progress of the business.
As regards more detailed specifics of the beneficiary[']s duties we wish to advise as follows:
• Responsibility for all Executive level decisions in the business and attending to and
making such decisions. 20%
• The responsibility for the overall control of the business and the guiding and planning
of the business policies, strategies and goals. 25%
• In the beneficiary[']s sole discretion the setting and determining the policies,
strategies, business practices and philosophy of the business. 150/0
• Ensuring that all executive level decisions as regards policy, business, strategy and
philosophies of the business are implemented by the Managerial staff and through
them to the Supervisory staff and the workers. Such staff to report to the beneficiary
on performance of their department and related areas[.] 20%
• Responsibility to hire and fire Upper Managerial staff and/or determine sanctions or
otherwise as regards these employees. 10%
• Responsibility for ultimate decisions on all contracts that are negotiated and authority
to accept and sign such contracts or reject the contracts proposed. 100/0[.]
The petitioner further asserts that it has five "employees" including the beneficiary. In support of this
assertion, the petitioner submitted an organizational chart in which the beneficiary is shown to be at the top of
the organization directly supervising a general manager who, in tum, is shown to be supervising an "imports"
employee, an "admin/sales" employee, and a marketing employee. The "admin/sales" employee is portrayed
WAC 0325951145
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as managing a third party logistics company in its provision of services to the petitioner. All four of the
subordinate employees are alleged to have earned university degrees.
The petitioner also submitted its Forms 941, Employer's Quarterly Federal Tax Return, for the first quarter of
2003, for all four quarters of 2002, and for three of the quarters of 2001. Contrary to the above-described
organizational chart and support letter, these tax documents indicate that the petitioner had no employees, and
no payroll, in the first quarter of 2003 and has never had more than three employees.
Finally, the petitioner submitted copies of four checks made payable to each of the four subordinate workers
identified in the organizational chart. Each check is for approximately $450.00 and is dated August 29,2003.
On September 22, 2003, the director requested additional evidence. The director requested, inter alia, a list of
all employees in the United States; a more detailed organizational chart including job duties of all employees;
federal and state wage reports and payroll summaries for the last four quarters; and audited financial
statements for the petitioner.
In response, counsel submitted a letter dated October 5, 2003 which reiterates that the petitioner employs five
people at its business location in Rolling Hills Estates, California. Counsel also submitted the petitioner's
wage report for the second quarter of 2003 which indicates that the petitioner employed only the beneficiary
during that quarter. The petitioner provided no further evidence regarding its employees or its payroll in 2003
other than the four checks submitted with the initial petition. The instant petition was filed on September 15,
2003.
Furthermore, the petitioner submitted a more detailed organizational chart in which the "general manager,"
who allegedly supervises the other three subordinate employees, is described as follows:
General Management of [the petitioner] with regard to administration of [the petitioner]
reporting directly to [the beneficiary.] Basic Salary $6000 per annum+perks+commission on
annual gross income.
The petitioner, however, did not submit any evidence that the general manager has received more than
approximately $450.00 on August 29, 2003 as remuneration, did not describe the "perks," and did not
describe how much money in "commissions" the general manager had earned in 2003.
Finally, the petitioner failed to submit an audited financial statement and explained that, because it was not a
publicly traded company, it did not need to prepare audited financial statements.
On January 19, 2006, 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 or manager.
Upon review, the petitioner's assertions are not persuasive.
WAC 03 25951145
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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 petitioner may not claim that a beneficiary is 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 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 day-to-day
basis. For example, the petitioner states that the beneficiary is responsible for the "overall control of the
business and the guiding and planning of the business policies, strategies and goals." However, not only does
the petitioner fail to define any of the policies, strategies, or goals being planned, the petitioner fails to
describe with any specificity what, exactly, the beneficiary does on a day-to-day basis. The fact that the
petitioner has given the beneficiary a managerial title and has prepared a vague job description which includes
lofty duties does not establish that the beneficiary is actually performing managerial duties. 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, given the absence of a subordinate staff, it appears that the beneficiary is primarily performing
non-qualifying administrative or operational tasks which do not rise to the level of being managerial or
executive in nature. While the petitioner has ascribed to the beneficiary vague, inflated duties such as "direct
and control the management of our business," the record nevertheless indicates that the beneficiary is the
petitioner's only employee. While counsel correctly observes on appeal that the beneficiary's singularity may
not be the determinative factor in this matter, the fact that the petitioner has not established that the
beneficiary is being relieved of the need to perform non-qualifying administrative or operational tasks by a
subordinate staff is crucial to the analysis. In this matter, the petitioner has asserted that it employs four
workers subordinate to the beneficiary. Not only has the petitioner failed to establish the existence of these
"employees" given their complete absence from the petitioner's wage reports, the petitioner has described the
workers, who are allegedly compensated largely through a commission-based system, as primarily sales
employees. Therefore, the petitioner has not explained who, other than the beneficiary, is engaged in
performing those non-qualifying administration and operational tasks inherent in this, and most every,
business such as clerical duties, processing accounts receivable, and answering the telephone. Furthermore,
choosing and pricing the petitioner's products, i.e., spices, are non-qualifying duties when the tasks inherent to
these duties are performed by the beneficiary. 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).
WAC 03 259 51145
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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.
As explained in the organizational chart and job descriptions for the subordinate staff members, the
beneficiary appears to supervise a staff of four employees and, indirectly, the provision of certain specialized
services by a contracted service provider. However, as explained above, the petitioner's wage reports for
2003 do not list the four alleged employees, and the petitioner has only established that these "employees"
have been paid approximately $450.00 each in 2003. Therefore, the petitioner has not established that it has
any employees other than the beneficiary. Regardless, the petitioner's descriptions of the four alleged
employees do not establish that any of these employees is engaged in performing managerial or supervisory
duties. To the contrary, it appears that these employees are performing the tasks necessary to produce a
product or to provide a service, i.e., commission-based sales activities. In view of the above, even if the
petitioner were able to establish that it had any employees other than the beneficiary, the beneficiary would
appear to be primarily a first-line supervisor of non-professional employees, the provider of actual services, or
a combination of both. A managerial employee must have authority over day-to-day operations beyond the
level normally vested in a first-line supervisor, unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, the petitioner has not established that the beneficiary will manage professional employees. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employee. The possession of a bachelor's or a master's degree by a subordinate employee
does not automatically lead to the conclusion that an employee is employed in a professional capacity as that
term is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's or
master's degree is actually necessary to perform the duties ascribed to the subordinate employees. Therefore,
even assuming again that the petitioner has adequately established the existence of these employees, the
petitioner has not established that these employees are professionals.
Finally, on appeal, counsel asserts that the beneficiary manages an essential function of the organization.
However, the record does not support this position. 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. 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
WAC 03 259 51145
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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.
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.
The petitioner's vague job description fails to document what proportion of the beneficiary's duties would be
managerial functions, if any, and what proportion would be non-managerial. Also, as explained above, the
record establishes that the beneficiary is primarily a first-line supervisor of non-professional employees
and/or is engaged in performing non-qualifying operational or administrative tasks. Absent a clear and
credible breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine
what proportion of her duties would be managerial, nor can it deduce whether the beneficiary is primarily
performing the duties of a function manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,
24 (D.D.C. 1999).
Therefore, the petitioner has not established that the beneficiary will be employed primarily 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 does on a day-to-day basis.
Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line supervisor
and/or is performing tasks necessary to produce a product or to provide a service. Therefore, the petitioner
has not established that the beneficiary will be employed primarily in an executive capacity.
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. 2d7, 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
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performing managerial or executive duties, and the petition may not be approved for that reason. I
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity because it has failed to establish that it is engaged in "doing business."
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by:
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.
Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." "Doing
business" is defined in pertinent part as "the regular, systematic, and continuous provision of goods and/or
services."
In this matter, the petitioner has failed to establish that it was engaged in the regular, systematic, and continuous
provision of goods and/or services at the time the petition was filed. As explained above, the record is devoid of
any evidence that the petitioner has any employees. The only evidence submitted by the petitioner consists of a
wage report from the second quarter of 2003 which indicates that the beneficiary was the petitioner's only
employee during that timeframe. The petitioner submitted no evidence establishing that it employed the
beneficiary, or anyone else, in September 2003.
Moreover, on September 22, 2003, the director requested that the petitioner submit "copies of latest, audited,
corporate financial statements including Balance Sheet and Statements of Income and Expenses." The petitioner,
however, has refused to submit audited financial statements, claiming that it is not required by law to maintain
such statements. Instead, the petitioner submitted an unaudited financial statement from June 30, 2003 attached
to a letter from an accountant commenting that "[m]anagement has elected to omit substantially all of the
disclosures required by generally accepted accounting principles." However, the unaudited financial statement is
'u is noted that counsel to the petitioner cited the unpublished opinion in Matter ofIrish Dairy Board, A28­
845-42 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as an
executive or manager. In that decision, the AAO recognized that the sole employee of the petitioner could be
employed primarily as a manager or executive provided he or she is primarily performing executive or
managerial duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no
evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision.
While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the
administration of the Act, unpublished decisions are not similarly binding. Second, as explained above, the
petitioner has not established that the beneficiary is primarily employed in an executive or managerial
capacity. This is paramount to the analysis, and a beneficiary may not be classified as a manager or an
executive if he or she is not primarily performing managerial or executive duties regardless of the number of
people employed by the petitioner. Therefore, as the petitioner has not established this essential element, the
decision in Matter ofIrish Dairy Board would be irrelevant even if it were binding or analogous.
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Page 10
not responsive to the director's Request for Evidence and is of questionable evidentiary value. Failure to submit
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R.
§ 103.2(b)( 14). Furthermore, the petitioner's excuse for failing to submit an audited financial statement is not
persuasive. Both publicly traded and closely held corporations produce audited financial statements for a
variety of reasons, including the establishment of the viability of the petitioner's business. The non-existence
or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
Accordingly, as the petitioner has failed to establish that it is engaged in doing business as defined in the
regulations, it has failed to establish that it has a qualifying relationship with the foreign entity. The petition
may not be approved for this additional reason.
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), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dar 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, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.