dismissed L-1A Case: Toy And Chemical Wholesale

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u.s .Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 05 144 50135 Office: TEXAS SERVICE CENTER Date :
IN RE: 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. § IIOI(a)(15)(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.
~~ief
Administrative Appeals Office
www.uscis.gov
SRC 05 144 50135
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 dism iss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president as an L­
lA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act) , 8 U.S.C. § 110l(a)(l5)(L) . The petitioner is a corporation organized under the laws
of the State of Texas and claims to be engaged in the business of toy wholesaling and the selling of chemical
products. 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.
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, the petitioner asserts that the director erred and that
the beneficiary's duties are primarily those of an executive or manager. In support of this assertion, the
petitioner submits a brief and additional evidence.
To establish eligibility for the L-l 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 (1)(l)(ii)(G) ofthis 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 , e xecutive or involved specialized knowledge and tha f 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.
SRC 05 14450135
Page 3
The regulation at 8 C.F.R. § 2l4.2(l)(14Xii) 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 in
paragraph (l)(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 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.
Section 101(a)(44)(A) of the Act , 8 U.S.C. § 1l01(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
SRC 05 144 50135
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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 execut ives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act , or primarily executive duties under
section 10I(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory defmitions. If the petitioner is indeed
representing the beneficiary as both an execut ive and a manager , it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The petitioner described the beneficiary's job duties in a letter dated April 11 , 2005 appended to the initial
petition. As that letter is in the record, the totality of the job description will not be repeated here .
On May 10, 2005, the director requested additional evidence. The director requested , inter alia , a further
explanation of the petitioner's business activities , an organizational chart for the United States operation
including job descriptions for all subordinate employees, a more specific description of the beneficiary 's job
duties, and state and federal wage reports for all employees .
In response, counsel to the petitioner provided a letter dated June 6, 2005. This letter explained that the
petitioner is a toy importer and wholesaler and seller of chemical products and that its business operations are
conducted by two corporations . The petitioner , American March, Inc., oversees a wholly owned subsidiary,
Fun & Fun Toys , Inc., which is primarily engaged in the toy business . Simultaneously, the petitioner is
directly engaged in the sale of chemical products in addition to the toy business. The petitioner provided
wage reports indicating that the beneficiary and two other employees are employed by the petitioner. Fun &
Fun Toys, Inc. also employs three people. Therefore, collectively, the petitioner has presented evidence that
the United States operation employs six people. The petitioner also provided evidence that Fun & Fun Toys,
Inc. utilizes the services of an independent contractor who is engaged in sales.
The petitioner also provided an organizat ional chart which shows the beneficiary at the top of the
organization . The beneficiary is portrayed as directly supervising an office manager and a toy and catalogue
designer, who are both employees of the petitioner. The beneficiary is also portrayed as directly supervising
the "general manager" of Fun & Fun Toys , Inc., who in turn supervises a warehouse worker, a secretary , and
the independent contractor engaged in sales, also described as "sales manager." The "general manager" is
described only as "In Charge of Sales, Import & Daily Business Operation of toys Business ."
SRC 05 144 50135
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The letter dated June 6, 2005 also included a job description for the beneficiary which is materially identical
to the job description provided in the initial petition with the exception of an explanation as to how much time
the beneficiary devotes to each duty. The job description states as follows:
1. Plans, develops and establishes policies, objectives, procedures, and responsibilities
for [the petitioner] in accordance with the [b]oard of directors and corporation
[c]harter. (15% of his time)
2. Reviews activity reports and financial statement to determine progress and status for
attaining objectives and revises objectives and plans in accordance with current
conditions. (20% of his time)
3. Oversee manager/professional in daily business operations, makes business decisions
for the company, and coordinates activities of the development and the
implementation of marketing objectives, strategies, and programs designed to
increase/improve the company's competitive capacity on the current intense market[.]
(50% of his time)
4. Directs market research activities, such as identifying, recommending, and
developing new product concepts and existing product modifications to generate
incremental sales[.] (10% of his time)
5. Evaluate the performance of subordinates for carrying out the established policies
and objectives and establishes internal policies hire/fire and promotion of
employees[.] (5% of his time)
On June 21, 2005, 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.
Title 8 C.P.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 Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. 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. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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.P.R. § 214.2(l)(3)(ii). The petitioner's description ofthe 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 beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
SRC 05 144 50135
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sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
primarily 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 "establishes policies , objectives,
procedures, and responsibilities" and "directs market research activities." However , the petitioner did not
specifically define what policies, objectives, procedures, or responsibilities would be established, or what
"market research activities" would be directed. 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 will actually perform 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). Absent a specific job
description, it cannot be determined whether the beneficiary will "primarily" be employed in a managerial
capacity. Moreover , as the beneficiary is described as spending half of his time overseeing the subordinate
manager, and that employee has not been established to be a supervisory, managerial, or professional
employee (see infra), this duty would be non-qualifying and, thus , it has not been established that the
beneficiary is "primarily" engaged in performing managerial duties for this additional reason.
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial , or professional employees. As explained in the organizational chart and wage
reports, the beneficiary appears to manage a staff of five employees. One of these employees, the "general
manager" of the petitioner's wholly owned subsidiary , is described as the supervisor of the independent
contractor, a secretary , and a warehouse worker. While the petitioner has given the "general manager" a
managerial title and has described him as having supervisory or managerial functions, the petitioner has not
established that this employee is primarily engaged in performing supervisory or managerial duties.
The job description provided for the "general manager" is so vague that it cannot be determined what this
employee does on a day-to-day basis nor can it be determined that he is a supervisory or managerial
employee. Inflated job titles alone and artificial tiers of subordinate employees are not probative and will not
establish that an organization is sufficiently complex to support a managerial position. Moreover , as the skill
levels and educational backgrounds for the subordinate employees have not been revealed , it cannot be
determined if they rise to the level of professional employees.I
lIn 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
SRC 05 144 50135
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In view of the above, the benefic iary would appear to be primarily a first-line supervisor of non-professional
employees, performing tasks necessary to the provision of a service or the production of a product, or a
combination of both. 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). 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 ofChurch Scientology International, 19 I&N Dec. at 604. 2
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"
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) .
2While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization , the record nevertheless would not support this position even if taken. 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 managing the essential function. See 8 C.F.R. § 2l4.2(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 . Absent a clear and credible
breakdown of the time spent by the beneficiary performing managerial duties, the AAO cannot determine
what proportion of his 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).
" .
SRC 05 144 50135
Page 8
and receive only "general supervision or direction from higher level executives , the board of directors, or
stockholders of the organization." ld. 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 will do on a day-to-day
basis. Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line
supervisor. Therefore , the petitioner has not established that the beneficiary will be employed primarily in an
executive capacity. • . ., .
It is appropriate for CIS to consider the size of the petitioning company in conjunction ~th. 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).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties , and the petition may not be approved for that reason?
The initial approval of an L-IA new office pet ition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556 ,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act, 8 V.S.c. § 1361.
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.
~e AAO notes that the director incorrectly determined that the wage reports failed to establish the
employment of all the people identified in the organizational chart. As explained by counsel, the petitioner
employs three people , while its wholly owned subsidiary employs three other people plus an independent
contractor. Therefore , the director's comments regarding discrepancies in the number of people employed
collectively by the petitioner and its wholly owned subsidiary are hereby withdrawn. That being said, th is
error was harmless in that the petitioner failed to otherwise establish that the beneficiary will be employed
primarily in a managerial or executive capacity for those reasons articulated abo ve. The beneficiary's
supervision of two additional non-professional , non-supervisory employees will not establish that he is
engaged in performing managerial or executive duties .