dismissed L-1A Case: Voice Processing Technology

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpel1Ol1a1privacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04 03850385 Office: CALIFORNIA SERVICE CENTER Date: JUL 0GZ007
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
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.
V
Robert P. Wiemann, Chief
sr: Appeals Office
www.uscis.gov
WAC 04 038 50385
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 petition seeking to extend the employment of its treasurer and chief
financial officer 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)(15)(L). The petitioner, a California
corporation , states that it is engaged in the development and sale of proprietary voice processing products and
application systems. The petitioner claims that it is the affiliate of Diavox Network, Inc., located in the
Philippines. The beneficiary was previously granted L-I A status for a three-year period , and the petitioner
now seeks to extend her stay for three additional years.
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 for the petitioner asserts that the beneficiary
qualifies for the classification sought and that U.S. Citizenship and Immigration Services (USCIS) erred in its
denial. Counsel emphasizes that the beneficiary was previously granted L-l A classification for the same
position with the petitioning company. In support of this assertion, counsel submits a brief but no additional
evidence.
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 (1)(1)(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.
WAC 04 038 50385
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 sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition.
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
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
WAC 04 03850385
Page 4
The nonimmigrant petition was filed on November 24, 2003. The petitioner stated on Form 1-129 that it
employs nine people in the United States and 207 employees worldwide. In a letter dated November 17,2003,
the petitioner stated that the beneficiary is "responsible for the financial coordination and operating
procedures for the US, Philippines and affiliated group of companies," referring to six "international joint
ventures operating offices" located in Australia, Indonesia, Philippines, Bahrain, Lebanon and Mexico. The
petitioner further described the beneficiary's job duties as follows:
1. Collect and account for the funds received by the company;
2. Maintain records of all financial transactions of the company;
3. Make a report of the financial status of the company to the Board of Directors;
4. Issue and sign all company checks;
5. Handle all correspondences for all joint ventures and sister companies;
6. Determine the projected expenses of all joint ventures;
7. Assist the President analyze [sic] the financial status of the company;
8. Coordinate with the internal and external auditors of the company .
The petitioner submitted an organizational chart for the U.S. entity which depicts the beneficiary as "finance"
and shows that she reports to the president of the company. The chart does not indicate any subordinate
employees for the beneficiary. The petitioner also submitted its most recent California Form DE-6 Quarterly
Wage and Withholding Report, which confirms the employment of three people as of October 2003,
including the beneficiary, an employee identified as "operations" on the organizational chart, and an
individual who is not identified on the organizational chart.
The beneficiary is also identified as "finance/admin/treasury" on the foreign entity's organizational chart,
which shows that she supervises an accountant/bookkeeper and external auditor , both of whom are apparently
located in the Philippines.
The director issued a request for additional evidence on December 5, 2003, instructing the petitioner to
submit: (1) a more detailed, specific description of the beneficiary's duties in the United States; (2) an
organizational chart clearly depicting the beneficiary's position and identifying all employees under the
beneficiary's supervision by name and job title; (3) a brief description of job duties for each of the
beneficiary's subordinates; and (4) copies of the U.S. company's California Forms DE-6 for the last three
quarters. The director also requested that the petitioner clarify the number of employees working for the U.S.
company, noting that the petitioner claimed nine employees, yet the latest Form DE-6 showed only three
employees.
In response , counsel for the petmoner stated that the U.S. company has five employees , not nine as
mistakenly indicated on the Form 1-129. The petitioner submitted a revised organizational chart which
indicates that the beneficiary supervises the .accountant/keeper and external auditor in the Philippines office,
and an internal/external auditor in the U.S. office. The petitioner did not provide job descriptions for the
beneficiary's claimed subordinates. Finally , the petitioner provided the following revised description of the
beneficiary's duties:
WAC 04 038 50385
Page 5
1. Collection , disbursements, and interest bearing placement of company funds
2. Assure financial records are properly maintained
3. Conduct periodic analysis of financial statements, measuring standard liquidity and
profitability ratios, with emphasis on ratios and guidelines prescribed by creditor
institutions and making appropriate and timely recommendations to the Board of
Directors
4. Prepare pro forma cash flow statements of the company joint ventures and sister
companies and construct appropriate control guidelines under the mandate of the board
5. Determine financial parameters of planned projects either ongoing or at planning stages
6. Negotiate Letters of Credit and arrange forward coverage on foreign currency exchanges
7. Act as liaison officer on all joint ventures and sister companies
8. [C]oordinate with the Internal and External Auditors of the company assuring compliance
to accepted accounting principles
The director denied the petition on March 8 , 2004, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director noted discrepancies between the number of claimed employees, and the number of employees
documented in the petitioner's quarterly wage reports. The director further observed that the petitioner had not
documented the employment of the beneficiary's claimed subordinate, the internal/external auditor, nor
provided the requested job descriptions for all employees supervised by the beneficiary. Finally, the director
acknowledged the job description provided for the beneficiary and concluded that it appears the beneficiary
will primarily perform all finance activities for the petitioner , rather than primarily manage the finance
function or supervise a staff of professional, managerial or supervisory personnel who would relieve her from
performing non-qualifying duties .
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial capacity.
Counsel explains that the internal/external auditor depicted in the organizational chart is an independent
contractor providing auditing services for the company. For this reason , counsel states that the petitioner
"could not possibly provide job titles, description of duties performed by all employees under the
Beneficiary's supervision." Counsel states that the accountant employed in the Manila office is an employee
of the foreign entity, "except that there is coordination between the Beneficiary and the Accountant of its
subsidiary in Manila."
Counsel reiterates the position description provided in response to the request for evidence, and states that the
petitioner has demonstrated that the beneficiary manages the essential function of "keeping an efficient
utilization of corporate funds." Counsel asserts that "considering the size of the organization and with its
computer set-up" the beneficiary does not supervise other employees, but she "absolutely exercises functions
at a senior level." Counsel emphasizes that the beneficiary has the authority to determine where to place
interest bearing funds , negotiate letters of credit, and decide whether to pursue a project or joint venture
locally or abroad. Finally, counsel stresses that the beneficiary was previously granted L-IA classification
under the same circumstances as those present in the instant petition.
WAC 04 03850385
Page 6
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary
would be employed in a primarily managerial or executive capacity under the extended petition.
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.
Here, the petitioner's initial description of the beneficiary's duties included a number of tasks that could
reasonably be construed as non-qualifying in nature. For example, the petitioner indicated that the
beneficiary would "collect and account for the funds received by the company," "maintain records of all
financial transactions," "issue and sign all company checks," "handle correspondences for all joint ventures
and sister companies," "determine projected expenses of joint ventures," and "assist the President [toJ analyze
the financial status of the company." Based on the limited explanation provided, the beneficiary appears to be
responsible for all aspects of the petitioner's finance activities, including bookkeeping, accounting, account
collections, records maintenance, banking, and financial analysis. While some of these duties are complex,
the job description as a whole does not support a conclusion that the beneficiary's duties are primarily
managerial.
Accordingly, the director requested that the petitioner submit a more detailed description of the beneficiary's
duties, with particular instructions that the petitioner "be specific." In its response to the director's request for
further evidence, the petitioner again provided a list of eight duties with little explanation or the requested
specificity. However, in comparing the two job descriptions, it appears that the petitioner merely inflated each
of the originally stated duties in an attempt to conform to USCIS requirements. For example, "collect and
account for funds received," was removed from the description in favor of "collection, disbursements, and
interest bearing placements of company funds," which seems to distance the beneficiary from the accounting
or bookkeeping tasks suggested by the initial description. Similarly, the beneficiary's initially stated
responsibility to "maintain records of all financial transactions" became "assure financial records are properly
maintained," thus suggesting that someone other than the beneficiary is responsible for record-keeping. The
beneficiary's responsibilities for handling correspondence with joint ventures and determining their projected
expenses were removed and the beneficiary was instead charged with "constructing appropriate control
guidelines" for joint ventures, "determining financial parameters of planned projects," "acting as liaison
officer" to all joint ventures, and, according to counsel on appeal, exercising authority to determine whether to
proceed with projects or joint ventures in the U.S. and abroad.
In sum, the initial description appeared to have the beneficiary doing a number of non-qualifying duties
associated with the petitioner's financial operations, while the second iteration of the job has the beneficiary
overseeing some of this work, and exercising a higher and broader level of authority. The purpose of the
request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has
been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for evidence, a petitioner cannot offer
a new position to the beneficiary, or materially change a position's title, its level of authority within the
organizational hierarchy, or its associated job responsibilities. The petitioner must establish that the position
offered to the beneficiary when the petition was filed merits classification as a managerial or executive
WAC 04 038 50385
Page 7
position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 , 249 (Reg. Comm. 1978). If significant changes are
made to the initial request for approval , the petitioner must file a new petition rather than seek approval of a
petition that is not supported by the record. The petitioner did not attempt to reconcile the two job
descriptions or indicate that the beneficiary does not actually perform the initially stated duties. Therefore, the
analysis of this criterion will be based on the job description submitted with the initial petition.
As discussed above, the initial description of the beneficiary's duties did not clearly establish that the
beneficiary performs primarily managerial or executive duties. The statute requires that an individual
"primarily" perform managerial or executive duties in order to qualify as a managerial or executive employee
under the Act. The word "primarily" is defined as "at first ," "principally," or "chiefly." Webster's II New
College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks
necessary to produce a product or to provide a service or other non-managerial duties, that individual cannot
also "principally" or "chiefly" perform managerial or executive duties. See sections 101(a)(44)(A) and (B) of
the Act; 8 U.S.C. §§ 1101(a)(44)(A) and (B) (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).
As the only employee in the petitioner's finance department, the beneficiary would necessarily perform a
combination of managerial and non-managerial duties. Here, the petitioner fails to document what proportion
of the beneficiary's duties would be managerial functions and what proportion would be non-managerial. The
petitioner lists the beneficiary's duties as including both managerial and administrative or operational tasks,
but fails to quantify the time the beneficiary spends on them. This failure of documentation is important
because several of the beneficiary's daily tasks, as discussed above , do not fall directly under traditional
managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the
beneficiary is primarily performing the duties of a function manager, as claimed by the petitioner. See IKEA
US, Inc. v. U.s. Dept. ofJustice , 48 F. Supp. 2d 22 , 24 (D.D.C. 1999).
On appeal , counsel asserts that the beneficiary manages the essential function of "keeping an efficient
utilization of corporate funds." 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 provide a detailed job description
that explains the duties to be performed in managing the essential function, i.e. identifies the function with
specificity , articulates the essential nature of the function, and establishes the proportion of the beneficiary's
daily duties attributed to managing the essential function. See 8 C.F .R. § 214.2(1)(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 "primarily" employed in a
managerial or executive capacity. Boyang, Ltd. v . I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th CiT,
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this
matter , the petitioner has not provided evidence that the beneficiary manages an essential function. As
discussed above, the petitioner has not established that the beneficiary's duties are primarily managerial.
WAC 04 038 50385
Page 8
Such a conclusion is supported by a review of the petitioner's organizational structure. Although the
beneficiary is not required to directly supervise subordinates to qualify as a function manager, the petitioner is
still obligated to establish that someone other than the beneficiary performs the day-to-day non-managerial
tasks of the function managed. Although the petitioner indicates that the beneficiary will coordinate with a
foreign affiliate's accountant, and utilize the services of an external auditor, the fact remains that the
beneficiary's job description indicates that she is responsible for a number of non-qualifying duties associated
with the day-to-day financial operations of the U.S. entity. There is no evidence that the external employees
would relieve her from these responsibilities, and the AAO is left to question how much time she could
reasonably devote to her claimed managerial duties.
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue.
Accordingly, the appeal will be dismissed.
Counsel asserts that the beneficiary was previously granted L-1A classification to work forthe petitioner in
the offered position, and thus the initial petition should have been approved. The prior approval does not
preclude USCIS from denying an extension of the original visa based on reassessment of petitioner's or
beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir.
2004). It must be emphasized that that each petition filing is a separate proceeding with a separate record.
See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information
contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Based on the lack of
required evidence of eligibility in the current record, the AAO finds that the director was justified in departing
from the previous petition approval by denying the instant petition.
If the previous nonimmigrant petition was 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).
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).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.