dismissed L-1A Case: Wholesale Luggage

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PUBLlCCOPY
u.s.DepartmentofHomelandSe~urity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04 169 53524 Office: CALIFORNIA SERVICE CENTER Date: ·JUl 0 9 2007
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)(l5)(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.
,Robert P. Wiemann, C i~f
r:Appeals Office
www.uscis.gov
WAC 04 169 53524
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa and
affirmed his decision on a subsequent motion to reopen and reconsider. 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 president as an L-1A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a California corporation, states that it is engaged in
the business of wholesale luggage sales. The petitioner claims that it is the subsidiary of Sun Products Import
& Export CC, located in South Africa. The petitioner has employed the beneficiary in L-1A classification
since August 2001 and now seeks to extend his status 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.
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial capacity
and suggests that the director failed to consider the petitioner's staffing levels in light of the petitioner's
reasonable needs and stage of development. Counsel also references an April 23, 2004 U.S. Citizenship and
Immigration Services (USCIS) interoffice memorandum which provides guidance to adjudicators reviewing
requests for an extension of status. Counsel contends that the director should have given deference to the
decision of the adjudicator who approved the petitioner's previous extension request absent a finding of a
material error, a substantial change in circumstances, or new material information that adversely impacts the
petitioner's or beneficiary's eligibility. Counsel submits a brief and documentary evidence in support of the
appeal.
To establish eligibility for the L-1 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)(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.
WAC 04 169 53524
Page 3
(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 himlher 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
WAC 04 169 53524
Page 4
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The nonimmigrant petition was filed on May 25, 2004. The petitioner stated on Form 1-129 that the U.S.
company has seven employees, and indicated that it would continue to employ the beneficiary as its president.
In a letter dated May 3, 2004, the foreign entity described the beneficiary's duties as follows:
In charge of the overall management of the company. Plan, develop and establish policies
and objectives of the company in accordance with the Board directives. Under the general
supervision of the Board of Directors, exercises the wide latitude of the discretionary
decision-making. Direct the implementation of the business expansion plan and operation
policies. Direct the utilization of the financial reports and activity data to determine the
strategy and progress of the company's business and designate further business goals and
plans. Meets with local business leaders to build up the network for the company. Oversees
the management strategies and promotion activities, and approve the management
improvement. Has the authority to hire, terminate, evaluate, and promote the managerial
personnel based on their job performance, qualification and contributions.
The petitioner submitted an organizational chart for the U.S. company which depicts the beneficiary as
president, supervising an accountant, an operation supervisor, a web developer/administrator, and a market
research analyst. The chart shows that the operation supervisor supervises a sales specialist and a warehouse
employee. The petitioner stated that the accountant, web developer/administrator and market research analyst
are all professional and "therefore, the Beneficiary is in no doubt in Managerial capacity." The petitioner
submitted its California Form DE-6, Quarterly Wage and Withholding Report, for the first quarter of 2004,
which confirms the employment of the individuals named on the organizational chart. The petitioner also
provided position descriptions for each of the beneficiary's subordinates.
On January 8, 2004, the director denied the petition, concluding that the petitioner had failed to demonstrate
that the beneficiary would be employed in a managerial or executive capacity. The director noted that the job
description provided by the petitioner did not clearly indicate how the beneficiary would work with the lower­
level employees to exercise his claimed authority in discretionary decision-making. The director also found
insufficient evidence to establish that the beneficiary would manage an essential function, or a staff of
subordinate managerial, supervisory or professional employees.
The petitioner subsequently filed a motion to re-open on July 2, 2004. On motion, counsel for the petitioner
argued that the beneficiary does in fact supervise managers, supervisors, and professionals. Counsel argued
that the positions of accountant, market researcher and web developer are clearly professional in nature, while
the warehouse manager and operations supervisor are serving in managerial positions. In addition, counsel
asserted that as a manager supervising other professionals and managers, the beneficiary "evidently performs
job duties substantially all at the managerial level."
WAC 04 169 53524
Page 5
The director granted the motion and affirmed his decision to deny the petition on August 9, 2004. The director
determined that the petitioner had not sufficiently described the duties performed by the beneficiary and his
subordinates, nor provided corroborative payroll documentation contemporaneous with the date the petition
was filed. The director also found insufficient evidence to corroborate counsel's claim that the beneficiary's
subordinates are employed in managerial, supervisory or professional positions.
On appeal, counsel for the petitioner asserts that the director's conclusions are erroneous. Counsel suggests
that the director failed to take into account the reasonable needs of the petitioning organization in light of its
overall purpose and stage of development, and cites an unpublished AAO decision in support of this assertion.
Counsel also notes that the beneficiary was previously granted an extension of L-1A status and refers to a
2004 USCIS memorandum to support his assertion that it is USCIS policy that prior approvals should be
given deference in matters relating to an extension of nonimmigrant petition validity involving the same
parties and the same underlying facts. See Memorandum of William R. Yates, Associate Director for
Operations, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a
Subsequent Determination Regarding Eligibility ofPetition Validity (April 23, 2004)("Yates memorandum. ")
The memorandum provides that exceptions to this policy should be made where: (1) it is determined that
there was a material error with regard to the previous petition approval; (2) a substantial change in
circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner's
or beneficiary's eligibility. Id. Counsel asserts that the instant petition involves the same parties and
underlying facts and that none of the above-referenced exceptions to USCIS policy apply.
Upon review, counsel's assertions are not persuasive and the decision of the director will be upheld. 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.
Rather than providing a specific description of the beneficiary's duties, the petitioner generally paraphrased
the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. §
1101(a)(44)(B). For instance, the petitioner depicted the beneficiary as being "in charge of the overall
management" and having responsibility to "plan, develop and establish policies and objectives," work "under
the general supervision of the Board," and "exercise the wide latitude of the discretionary decision-making."
However, conclusory assertions regarding the beneficiary's employment capacity are not sufficient to
establish the beneficiary's employment in a qualifying managerial or executive capacity. Merely repeating the
language of the statute or regulations does not satisfy the petitioner's burden of proof. 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); Avyr Associates Inc. v.
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
In addition to merely paraphrasing the statutory definition of executive capacity, the petitioner has identified
such vague and nonspecific duties as "direct the implementation of the business expansion plan and operation
policies," and "oversees the management strategies ... and approve the management improvement." The
petitioner did not, however, define the beneficiary's "expansion plan," or clarify what specific duties he
WAC 04 16953524
Page 6
performs to "oversee" management strategies or what is involved in approving "management improvement."
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
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. The actual
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at
1108.
While it is noted that the director did not issue a request for a more detailed description of the beneficiary's
position prior to issuing his June 8, 2004 decision, the AAO finds that the petitioner has had adequate notice
of the deficiencies of the position description and ample opportunity to clarify the beneficiary's actual duties
on motion and on appeal. The petitioner has failed to do so. The position description provided falls
significantly short of articulating the beneficiary's day-to-day responsibilities, such that they could be
classified as managerial or executive in nature. The petitioner cannot rely on vague characterizations and
conclusory assertions to establish the beneficiary's employment in a managerial or executive capacity.
Furthermore, the petitioner's description of the beneficiary's duties cannot be read or considered in the
abstract, rather the AAO must determine based on a totality of the record whether the description of the
beneficiary's duties represents a credible perspective of the beneficiary's role within the organizational
hierarchy.
The petitioner has submitted a number of documents, including an organizational chart, position descriptions
for the claimed professional and managerial employees, trade show information, invoices and receipts. A
number of these documents suggest that the beneficiary is directly involved in performing the routine duties
associated with providing the petitioner's product or service. These documents include trade show
advertisements which have the beneficiary listed as the contact, contracts filled out and signed by the
beneficiary, and order forms to the attention of the beneficiary. The petitioner's position description for the
beneficiary notes that he "meets with local business leaders to build up the network for the company." This
job responsibility, when considered with the documentary evidence provided, suggests that the beneficiary is
directly involved in the sales and marketing tasks of the company.
Such a conclusion is further supported by a review of the petitioner's staffing levels in light of the company's
overall purpose and stage of development. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). The
petitioner is a three-year-old import and wholesale company with gross sales of approximately $1.8 million in
the year preceding the filing of the petition. The petitioner claims to employ a single sales specialist who, in
addition to performing sales duties, is responsible for setting up a "company business network," placing
orders, arranging and controlling shipping schedules, and collecting payments. None of the other employees'
job descriptions include any sales tasks, which seems implausible considering the volume of sales conducted
by the petitioning company. The petitioner has not explained how a single sales employee meets the
reasonable needs of its wholesale business. The lack of subordinate sales staff therefore raises additional
questions regarding the beneficiary's involvement in the day-to-day sales of the company.
Counsel claims that the director erred by concluding that the beneficiary will not supervise a staff of
managerial and professional employees. Although the beneficiary is not required to supervise personnel, if it
WAC 04 169 53524
Page 7
is claimed that his duties involve supervising employees, the petitioner must establish that the subordinate
employees are supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than relying solely
on the degree held by a 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 the instant case, the petitioner claims that the positions of market
research analyst, web developer/administrator, and accountant all require bachelor's degrees and are
professional positions. However, the petitioner has not shown that the employees who fill these positions
actually possess bachelor's degrees in the claimed required fields of study, such that they could be classified
as professionals. Absent evidence of the employees' educational qualifications, the petitioner has not provided
sufficient evidence to support its claim. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972)).
Counsel further states that its operations supervisor and warehouse manager are managers, and that the
beneficiary's supervision of such employees establishes his employment in a managerial capacity. The job
description submitted indicates that the warehouse manager performs the day-to-day duties of the warehouse
function and does not supervise any employees. The petitioner has not established that the warehouse
manager is employed in a managerial or supervisory capacity. The petitioner indicates that the beneficiary's
spouse, as operations supervisor, supervises two employees and is responsible for "developing and managing
the day-to-day operations." The AAO notes that the petitioner has also submitted the beneficiary's 2003 Form
1140-A, U.S. Individual Income Tax Return, on which the beneficiary's spouse's occupation is identified as
"clerk." 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).
As noted above, when examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's
duties and those of his or her subordinate employees, the nature of the petitioner's business, the employment
and remuneration of employees, and any other facts contributing to a complete understanding of a
WAC 0416953524
Page 8
beneficiary's actual role in a business. The evidence must substantiate that the duties of the beneficiary and
his or her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers
of subordinate employees and inflated job titles are not probative and will not establish that an organization is
sufficiently complex to support an executive or manager position. The petitioner has not submitted sufficient
evidence to establish that the beneficiary's subordinates are supervisors, managers, or professionals.
On appeal, counsel refers to an unpublished decision in which the AAO reversed the decision of the director.
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in
the unpublished decision. While 8 C.F .R. § 103.3(c) provides that AAO precedent decisions are binding on
all USCIS employees in the administration of the Act , unpublished decisions are not similarly binding. The
decision referenced by counsel is not an AAO precedent decision. Further , the existence of this or any other
decision does not absolve the petitioner of having to satisfy its burden of proof for this nonimmigrant petition.
In this case there is a lack of probative evidence with regard to the beneficiary 's actual employment capacity
and the petitioner relies largely on conclusory statements in asserting that the beneficiary is acting primarily
in a managerial or executive capacity. Counsel's cite to the non-precedent decision issued by the AAO is not
persuasive.
Counsel asserts that it was improper for the director to deny the petition after previously approving the
beneficiary's request for an extension of status with the same petitioner for the same position. Referring to the
above-referenced Yates memorandum , counsel claims that the director was required by current USCIS policy
to give deference to the subjective determination of prior adjudicators who concluded that the beneficiary is
serving in a qualifying managerial or executive capacity.
Counsel's assertion is not persuasive. It must be emphasized that that each nonimmigrant petition filing is a
separate proceeding with a separate record and a separate burden of proof. See 8 C.F.R. § 103.8(d). In
making a determination of statutory eligibility, USCIS is limited to the information contained in that
individual record of proceeding. See 8 C.F.R. § 1 03.2(b)(l6)(ii). 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.
While CIS approved two other petitions that had been previously filed on behalf of the beneficiary, the prior
approvals do not preclude USCIS from denying an extension of the original visa based on reassessment of
beneficiary 's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir.
2004). If the previous nonimmigrant petitions were approved based on the same unsupported assertions that
are contained in the current record, the approvals would constitute material and gross error on the part of the
director. Due to the lack of evidence of eligibility in the present record , the AAO finds that the director was
justified in departing from the previous approvals by denying the present request to extend the beneficiary's
status. As discussed above, the evidence submitted fails to describe the beneficiary's actual job duties in detail
as required by 8 C.F.R. § 214.2(l)(3)(ii) and is insufficient to establish that the beneficiary would be
employed in a managerial or executive capacity .
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
WAC 04 16953524
Page 9
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). USCIS memoranda merely articulate internal guidelines
for CIS personnel; they do not establish judicially enforceable rights. An agency's internal guidelines "neither
confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Loa-Herrera
v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th
Cir.1987)).
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).
The petitioner has not submitted evidence on appeal to overcome the director's determination that the
beneficiary will not be employed in a managerial or executive capacity under the extended petition.
Accordingly, the appeal will be dismissed.
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.