dismissed L-1A Case: Textiles

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u.s.Departmentof Homeland Security
20 Mass. Ave., N.W., Rrn. A3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
File: EAC-03-224-51145 Office: VERMONT SERVICE CENTER Date: SEP 0 6 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:
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.
:a:. ,..~_.-
~ -~.
":kob .emann, Chief
Administrative Appeals Office
www.uscis.gov
EAC-03-224-51145
Page 2
DISCUSSION: The Director, Vermont 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 qualify the employment of its president as an L-l A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws of the
State of Maryland and is engaged in the business of importing and selling textiles. The petitioner claims that
it is the subsidiary of , located in New Delhi, India.
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, reasoning that the petition did
not have sufficient staff to relieve the beneficiary from having to primarily perform the duties related to
producing a product or service and that the petitioner had not grown to a level sufficient to support a
managerial or executive position.
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 for the petitioner asserts that the director's
decision was based on misunderstood facts. The petitioner indicated that it would submit a brief and
additional evidence within thirty days. No brief or evidence was ever received, however, and the record will
be considered complete.
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)(I)(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.
EAC-03-224-51145
Page 3
(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 issue in the present matter is whether the beneficiary will be employed by the United States entity in a
primarily managerial or executive capacity. The petitioner has represented that the beneficiary has been
traveling to the United States under a B-1 visa, and is seeking admission as an L-1A non-immigrant to obtain
longer periods of stay.
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
EAC-03-224-51145
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(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In the initial petition, the petitioner described the beneficiary's job duties as follows:
[The beneficiary] shall continue to participate in trade shows personally and [pursue] the
activities of the [c]ompany on a daily basis instead of controlling its affairs from overseas. A
more permanent presence of the owner is also required to [pursue] the [petitioner's] growth
more vigorously and also to perform all the legal and statutory responsibilities of the
[c]ompany.
On September 2, 2003, the director sent a request for additional evidence (RFE) to the petitioner.
Specifically, the director requested a detailed description and hourly breakdown of the beneficiary's activities,
organizational charts, a detailed description of the beneficiary's duties abroad, and a statement with specific
details about the foreign organization.
In response, the petitioner submitted a letter and additional evidence, including pictures, tax returns,
documents of the foreign organization and catalogues.
On July 7, 2004, the director denied the petition. The director determined that the petitioner had not
established that the beneficiary would be acting primarily in a managerial or executive capacity.
On appeal, counsel for the petitioner asserts that the director's decision was based on incorrectly understood
facts.
Upon review, counsel'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. A petitioner cannot claim that some of the duties of the position entail
executive responsibilities, while other duties are managerial and rely on partial sections of the two statutory
definitions. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The definitions of executive and managerial capacity have two main parts. 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).
The initial description of the beneficiary's duties are not sufficient to make a determination that the
beneficiary will be acting primarily in a managerial or executive capacity. A description such as "pursue the
EAC-03-224-51145
Page 5
activities of the company" and "pursue growth" are not probative and have not been demonstrated to
constitute managerial and executive duties. Further, the pursuit of growth would involve performing the
routine tasks and duties associated with providing the product or service. As the beneficiary is the sole
employee of the petitioner the AAO must presume that it is the beneficiary that will perform the duties and
not manage them. 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).
In the response to the director's RFE, the petitioner asserts that the beneficiary will represent the company at
trade shows and will have the authority to spend the petitioner's money and engage in the sale and purchase
of materials. The petitioner asserts that contractors perform the contracts negotiated by the beneficiary, but it
provides no support or documentary evidence of the "contractors," despite the director's specific request, or
any evidence that such a need for contractors even exists. The petitioner also mischaracterizes the director's
reasoning as requiring the beneficiary to manufacture clothes. The director's reasoning highlighted the fact
that the routine tasks necessary to provide a product or service for the petitioner is to import leather clothing
for wholesale trade, which would include negotiating contracts and buying and selling on behalf of the
company with other businesses. The director's decision was not based on any requirement to manufacture
clothes, but on the fact that the structure of the organization did not support the ability to perform the asserted
business operations.
The petitioner provides an elaborate organizational chart but there is little documentary corroboration that the
contractors or "sales representatives" referenced actually exist, much less function in a capacity that would
constitute doing business on behalf of the petitioner. The director specifically requested information about
alleged contractors or other employees. The petitioner did not adequately respond to the director's RFE in
that it failed to provide additional detail with supporting documentary evidence. 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 (Corom. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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)(l4). The non-existence
or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
In this case the petitioner failed to adequately respond to the director's request for documentary evidence of
employees, and such unavailability of evidence supporting the existence of employees to relieve the
beneficiary from primarily performing the routine duties necessary to provide the product or provide the
service creates a presumption of ineligibility.
The petitioner asserts that the hourly breakdown of the beneficiary's weekly duties while in the U.S. include:
• Attending trade shows: 13 hours
• Follow up with sales reps and independently to [sic] identify potential customers and fix up
appointments with them: 14 hours
• Planning and identification of new areas of growth for the company: 13 hours
EAC-03-224-51145
Page 6
This description is not probative of a managerial or executive status, but it is does establish that the
beneficiary is performing in sales duties. Selling a company's product or service directly to customers
(wholesale or retail) has not been demonstrated to constitute a managerial or executive duty and in fact is a
routine function necessary to provide the product or service of this petitioner. Attending trade shows and
"planning and identification of new areas of growth" have not been demonstrated to constitute managerial or
executive duties, and in this case have not even been clearly explained. In responding to the director's request
for a detailed description of the beneficiary's duties the petitioner responded:
[The beneficiary's] duties have been banking, [t]ax returns of [the petitioner], participation in
trade shows, visiting clients, negotiating with important clients to procure business,
participate in forums & meetings of western industry and trade. He would be hiring
employees to do non technical jobs such as clearing imports, customer calls, packing &
shipping of [m]erchandise, collection of checks and payments. Other important functions are
looking for plant & machinery and source of raw material for export to India.
This description does not establish that the beneficiary's duties satisfy the criteria outlined by 8 U.S.C. §
1101(a)(44)(A) or 8 U.S.C. § 1101(a)(44)(B), and in fact further illustrate that the beneficiary would be
present in the United States primarily to locate customers for its overseas product. Otherwise the description
is vague and lack detail. 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 answer a critical question in this case: What does the beneficiary primarily do on a
daily basis? 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).
On appeal the petitioner asserts that the director misunderstood the facts of the case. However, the petitioner
merely reasserts that the beneficiary will "look for export opportunities" and that exporting machinery over
the last few years now requires personal attention of the beneficiary. The facts as they are characterized by
the petitioner do not overcome the deficiencies in the petition. The petitioner asserts that the director
misunderstood that the beneficiary was already the president of the company and was not seeking residence in
the United States. However, this bears no relevance to the director's conclusion that the beneficiary would not
be primarily acting in a managerial or executive capacity. The petitioner asserts that the beneficiary would be
looking for export opportunities but, as stated before, this constitutes a sales function which has not been
demonstrated to be a managerial or executive duty. Searching for customers to purchase the petitioner's
product would still be the performance of the routine tasks necessary to provide the product or service of this
petitioner. Further, the beneficiary's proposed duties, as described, would not be considered doing business,
and illustrate that the beneficiary's position with the petitioner is merely that of an agent. 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). Thus, it is not clear that
the beneficiary's duties would constitute doing business for the petitioner.
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and
EAC-03-224-51145
Page 7
employees in the future. However, the petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). In the instant matter, the petitioner has not reached the point that it can employ the beneficiary
in a predominantly managerial or executive position.
Accordingly , the petitioner has not established that the beneficiary will be employed in a primarily or
managerial capacity, as required by 8 C.F.R. § 214.2(1)(3). For this reason the petition must be denied.
Beyond the decision of the director, another issue in this matter is whether the petitioning organization has a
qualifying relationship with the foreign entity. Although not addressed by the director, 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 petitioner has represented that the beneficiary has been entering the United States to conduct business on
behalf of the petitioner under a B-1 visa, but asserts that the most recent visitation under the B-1 classification
was too short. If given more time , asserts the petitioner, the beneficiary could expand the petitioner's business
operations. However, the L-l classification has separate requirements concerning the nature of the
beneficiary 's work activities. An L-l classification requires that a beneficiary work primarily in a managerial
or executive capacity and that both the foreign organization and the petitioner conduct business. In this case,
the beneficiary would primarily act as an agent or office of the foreign organization. The regulation at 8
C.F.R. § 214.2(l)(1)(ii)(G)(2) requires that a qualifying organization:
Is or will be doing business (engaging in international trade is not required) as an employer in
the United States and in at least one other country directly or through a parent, branch,
affiliate, or subsidiary for the duration of the alien's stay in the United States as an
intracompany transferee.
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). In this case
the fact that the beneficiary will primarily be engaged in selling the foreign organization's product indicates
that the beneficiary would be a mere agent for the foreign organization. As a mere office or agent the
petitioner would not be doing business as defined under the L-l regulations and, thus , the petitioner is not a
qualifying organization and there is no qualifying relationship. Not only do the beneficiary's duties not
satisfy the L-l 's managerial and executive capacity requirements, the regulations specifically prohibit this
classification for a mere agent or office of a petitioner.
In addition, CIS precedent decisions recognize that stock certificates alone do not fully represent whether a
stockholder or stockholders maintain ownership and control of a corporate entity. See Matter of Siemens
EAC-03-224-51145
Page 8
Medical Systems, Inc., 19 I&N Dec. 362, 363 (BIA 1986); Matter of Hughes, 18 I&N Dec. at 293. The
petitioner must submit evidence to establish the exact number of shares issued and outstanding. The
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant
annual shareholder meetings must be examined to determine the total number of shares issued, the exact
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate
control. For example, if a petitioner submits a single stock certificate, as in this case, and no other evidence
regarding ownership, CIS is unable to determine whether that single certificate reflects the total number of
shares issued and outstanding or whether there are more share certificates that might represent a majority
ownership interest. Additionally, a petitioning company must disclose all agreements relating to the voting of
shares, the distribution of profit, the management and direction of the subsidiary, and any other factor
affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control.
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 at 1043, aff'd., 345 F.3d 683; see also Dor v. INS,
891 F.2d at 1002 n. 9 (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, aff'd., 345 F.3d 683.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed and the petition hereby denied.