dismissed L-1A Case: Wholesale

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PUBIJC COP~~
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
f.).·.) "1.4' I
'I
File: WAC 05 036 50357 Office: CALIFORNIA SERVICE CENTER Date: fEB 0 1Z007
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. § 110l(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 .
.-···..·-7
..... ~---
Roben·p. Wiemann, Chief
Administrative ~ppeals Office
www.uscis.gov
WAC 05 036 50357
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 employ the beneficiary as 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. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly engaged in the wholesale of sporting goods and healthcare products.
The petitioner claims a qualifying relationship with . of Taiwan.
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 in
denying the petition because the record establishes that the beneficiary will be employed primarily as an
executive or manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section lOl(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.
(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.
WAC 05 036 50357
Page 3
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. § I I01 (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.
The petitioner does not clarify 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 101(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 definitions. If the petitioner is indeed representing the beneficiary as both an
executive 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. Given the ambiguity, the AAO
will consider the appeal as if the petitioner is asserting that the beneficiary will be employed primarily as
WAC 05 036 50357
Page 4
either an executive or a manager.
The petitioner described the beneficiary's proposed duties, the duties of subordinate employees, and the
petitioner's organization in documents appended to the initial petition. The petitioner described the
beneficiary's duties as follows:
Management. Decision maker of all policies. Strategy making & decision.
Finance: Annual budget planning and control. All expenses monitoring.
Personnel: Employee hire decision. Job and payment decision[.]
eStore System: Design and establish whole eStore system and maintenance.
Marketing: Product promotion decision. Marketing analysis. Advertisement.
Import & Export: Product import control. Equipment & material export promote[.]
Product Design: New product design. Appearance & packaging design.
Product Technology. Engineering structure design. Technology support.
Supervising: quality control; sales monitoring; shipping and delivery[.]
The petitioner provided a further description of these duties in a separate document appended to the initial
petition, which also includes a breakdown of how much time the beneficiary will spend on each duty as
follows:
Company Management: 25%
Phone or online meeting with Taiwan parent company twice a month.
Company's policy design and analysis. Policy execution monitor and revise.
Company development strategy analysis, design and execution.
Overall business decision making. Management problems solving.
Finance Control: 10%
Annual budget planning and all expenses control.
Daily sales income checking, bank account and credit balance checking.
Personnel Planning: 3%
Company labor control. Job employ and payment decision.
Employee working efficiency monitoring. Employee entertainment leading.
eStore System Design: 250/0
Online eStore system design and establish. Currently 4 website running.
eStore trouble shooting, technical problem solving, antivirus control.
Website traffic increase promotion. Search engine listing up front promote.
Periodically website design improvement. Contents and price change.
New product line adding and new website establish every season.
Daily overall website checking and maintenance[.]
Marketing and Sales: 20%
Marketing policy and strategy analysis, design and execution.
WAC 05 036 50357
Page 5
Product cost and sales expenses analysis. Product pricing decision.
Commercial advertisement and quotation papers design and order prints[.]
Major customers contact, meeting and sales. New customer promote.
Products Import & Parts Export: 5%
Product import quantity control. Place import orders. Wire payments.
Equipment & material export contract, purchase and monitoring.
Product Design and Technology Support: 2%
New product designs selection. Appearance & packaging design checking.
Product engineering structure design confirm. Technology support.
Product Line Development[:] 50/0
New product line adding analysis and evaluation.
New product manufacturing planning or vendor contact and select.
Business Supervising: 50/0
Quality control checking everyday. Customer sales monitoring everyday.
Shipping and delivery checking weekly. And other over all supervision.
The petitioner also provided two organizational charts (October 2004 and November 2004) for the United
States operation. The more recent chart places the beneficiary at the very top of the organization directly
supervising four people (an export manager, a shipping assistant, a CFO/secretary, and a sales manager).
These subordinate employees, with the exception of the export manager, are shown to have supervisory
functions. The charts show a total of twelve employees (including the beneficiary). However, the wage
report for the third quarter of 2004 only reported six employees.
Finally, the petitioner provided "brief descriptions" of the employees directly supervised by the beneficiary
including educational backgrounds and basic job duties.
On December 2, 2004, the director requested additional evidence. The director requested, inter alia, details
regarding the employment of the CFO/secretary and a more detailed job description for the beneficiary. In
response, counsel to the petitioner restated the same job description for the beneficiary as was previously
provided and clarified that the CFO/secretary is not compensated by the petitioner.
On December 28, 2004, the director denied the petition. The director determined that the petitioner did not
estab~ish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary will be employed primarily as an executive or a manager.
Upon review, the petitioner's assertions are not persuasive.
WAC 05 036 50357
Page 6
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 beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner has failed to prove 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 will do on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties include policy design and execution, strategy development, and business decision­
making. The petitioner did not, however, specifically define what policies, strategies, or decisions will be
designed and executed upon, or, crucially, describe with specificity how the beneficiary will perform these
duties. Equally important, the majority of the duties described, as broken down by the petitioner, are
operational or administrative tasks that do not qualify as managerial duties. For example, running the
company's website, marketing, balancing accounts, placing import orders, and designing products are not
managerial or executive duties when the beneficiary performs the tasks necessary to these functions. 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). 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). 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).
The petitioner also failed to prove that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that he will manage an essential function within the
organization. While the petitioner did supply an organizational chart, the job descriptions provided for the
subordinate employees reveal that these employees are performing the tasks necessary to produce a product or
to provide a service. Moreover, the vague job descriptions for the sales manager, export manager, and
shipping manager fail to establish that these employees have supervisory or managerial duties. To the
contrary, these employees appear engaged in performing operational or administrative tasks (i.e., marketing,
product delivery, purchasing, product assembly, packaging). Finally, the petitioner admits that the
CFO/secretary is not even an employee. In view of the above, the beneficiary would appear to be a first-line
supervisor, the provider of actual services, or a combination of both. A managerial or executive 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 job descriptions provided for the subordinate
WAC 05 036 50357
Page 7
employees do not establish that they are professionals.
1 Therefore, the record does not prove that the
beneficiary will be acting in a managerial capacity.'
Similarly, the petitioner has failed to prove 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
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
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 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 this matter, while some of the beneficiary's employees appear to hold university degrees,
this is of no relevance absent evidence that the positions held by these employees require these degrees.
2While the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless 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 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, which includes operational and administrative tasks and indicates that he will likely have first­
line supervisor responsibilities, fails to document what proportion of the beneficiary's duties would be
managerial functions and what proportion would be non-managerial. Absent a clear and credible breakdown
of the time spent by the beneficiary performing his 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. Us. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 05 036 50357
Page 8
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. As indicated above, the petitioner has failed to prove that the
beneficiary , who is allegedly overseeing employees who are apparently engaged in providing services to
customers and who is primarily engaged in performing administrative or operational tasks , will be acting
primarily in an executive capacity .
Accordingly , the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C .F.R. § 214.2(1)(3).
Beyond the decision of the director , a related issue in this proceeding is whether the petitioner has established
that it and the foreign entity are qualifying organizations as defined by 8 C.F .R. § 214.2(1)(1)(ii)(G) .
To establish a "qualifying relationship" under the Act and the regulations , the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). A subsidiary is a firm, corporation, or other legal entity of
which a parent owns more than half of the entity and controls the entity. See 8 C.F.R. § 214.2(1)(1)(ii)(K). In
this case , the petitioner asserts that it is 100% owned by the foreign entity thus, if true, establishing a
parent/subsidiary relationship .
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International , 19 I&N Dec. 593; see also Matter of
Siemens M edical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec . 289 (Comm .
1982). In the context of this visa petition , ownership refers to the direct or indirect legal right of possession of
the assets of an entity with full power and authority to control; control means the direct or indirect legal right
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
In support of its assertion of having a qualifying relationship, the petitioner provided corporate records,
organizational docurnents, and three stock certificates issuing a total of 210,000 shares to the foreign entity.
However, the petitioner also provided copies of its 2002 federal and California tax returns indicating that the
beneficiary , and not the foreign entity , is the sole owner of the petitioner. In the Request for Evidence , the
director requested that the petitioner submit documentation clarifying this inconsistency. In response , counsel
to the petitioner indicated that petitioner's identification of the beneficiary as the owner of the petition was an
"error" and that "the mistake is being amended." Counsel also provides copies of undated tax return
amendments correcting the "error." There is no evidence in the record establishing that these amendments
were filed before the director brought the discrepancy to the petitioner's attention or that the petitioner has
taken any steps to similarly amend its California tax return. The petitioner also offers no explanation as to
how or why this "error" was made .
WAC 05 036 50357
Page 9
Upon review, the petitioner has not satisfactorily resolved the inconsistency in the record and, consequently,
has failed to establish that it has a qualifying relationship with the foreign entity. It is incumbent upon the
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). In this matter,
the petitioner has offered no objective evidence resolving the serious inconsistency regarding its ownership
and control. Therefore, 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 Dor 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.