dismissed L-1A Case: Wine Business

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC .20529
u.S. Citiz~nship
.and Immigration
.Services
File: EAC 05 16353148 Office: VERMONT SERVICE CENTER Date:' MAY 13 UU1
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Purs~t to Section 101(a)(15)(L) of the In'uiligration .
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and Nationality Act, 8 U.S.C.§ 1101(a)(15)(L). .' - . . '. .
IN BEHALF OF PETITIONER: .
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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.. . ,
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R~Wiema~, Chief'· ..
Administrative Appeals Office .
w~.uscis.gov
EAC 05 16353148
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its general manager
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. § llOl(a)(15)(L). The petitioner is a business entity organized under the
laws of Italy and is registered to do business in the Commonwealth of Pennsylvania. The petitioner is
allegedly in the wine business. 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.1
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 thatthe director erred and that
the beneficiary's duties are primarily those of a manager. In support of this assertion, the petitioner submits a
brief and additional evidence.
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 (I)(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
lIt is noted for the record that the petitioner's name as registered with the Commonwealth ofPennsylvania is
"Tinazzi Eugenio & Figli Sr1." -
EAC 05 16353148
Page 3
educatio~, trammg, 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 regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied ~y the following:
(A) Evidence' that the United States and foreign entItIes are still qualifying
organizations as defined in.paragraph (1)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(I)(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. § 1 101(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
EAC 05 16353148
Page 4
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 ofthe 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 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 101(a)(44)(B) of the Act. On appeal, while counsel to the petitioner- asserts in her brief that the
beneficiary will be employed primarily in a managerial capacity, the additional evidence describes the
beneficiary as an executive. A beneficiary may not claim to be employed as a hybrid i'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
lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed
primarily as a manager or an executive and will consider both classifications.
In the Form 1-129, the petitioner described the beneficiary's job duties as follows: "Overseeing marketing and
sales of [the petitioner's] wines in US through its importers; [d]irect promotions, select two additional
importers, contacting customers, advise sales force on [the petitioner's] wines."
On May 25, 2005, the director requested additional evidence. Specifically, the director requested an
organizational chart for the United States operation and a comprehensive description of the beneficiary's job
duties.
In response, counsel provided a letter dated June 7, 2005 explaining that the petitioner employs one other
person, an administrative assistant. The organizational chart corroborated this assertion. Counsel further
described the beneficiary's duties as Jollows:
[O]verse the marketing and sales of [the petitioner's] wines in the United States through its
importers, manage and direct promotions to importers, contact importers, provide support for
importers' sales forces on [the petitioner's] wines and cultivate and increase the client base.
Counsel also described the job duties of the subordinate employee as follows:
EAC 05 16353148
Page 5
[M]aintaining client lists for the company, coordinating initial contacts with the clients,
preparing and mailing invoices to the clients, maintaining the financial accounts, ensuring the
smooth operation ·of the physical plant, including payment of all utilities, and other general
administrative duties.
On June 22, 2005, the director denied the petition. The director concluded 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, the petitioner asserts that the director erred and that the beneficiary's duties are primarily-those of a
manager. In support of this assertion, the petitioner submits a brief and two letters from wine importers
explaining that the petitioner's business does not require an extensive staff.
Upon review, the petitioner's assertions are not persuasive.
I:itle 8 C.F.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 ofthe job duties. See 8 C.F.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
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
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. The fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job
description 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 a/Treasure Craft a/California, 14 I&N Dec. 190 (Reg. Comm. 1972)..
The most that can be gleaned from the job description is that the beneficiary works with importers to market,
sell, and promote the petitioner's wines. Not only is this job description vague, the job duties ascribed to the
EAC 05 163 53148
Page 6
beneficiary appear to be non-qualifying administrative or operational tasks and are not managerial in nature.
The letters provided by the petitioner on appeal only bolster this determination. These letters both explain
that "wine import/export executives," such as the beneficiary, spend most of their time interacting with
customers and procuring orders, thus obviating the need to hire large staffs. However, the act of marketing or
promoting a product is not a managerial duty and may not be used to qualify a beneficiary as a managerial'
employee. 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 (Cbmm. 1988).
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 job
description for the subordinate employee, the beneficiary appears to manage one administrative assistant who
is engaged in performing clerical tasks. The subordinate employee is clearly performing tasks related to
providing a service or producing a product and is not a supervisory, managerial, or professional employee. In
view of the above, the beneficiary would appear to be primarily a first-line supervisor of a non-professional
employee, the provider of actual services, or a combination of both. 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 of Church Scientology
International, 19 I&N Dec. at 604.2 •
Similarly, the petitioner has faile<:i 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
2While counsel to the petitioner asserts on appeal that the beneficiary manages an essential function of the
organization, the record does not support this assertion. 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 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 performing tasks related to
producing a product or providing a service as well as acting as a first-line supervisor of a non-professional
employee. 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 will primarily perform the duties of a function manager. See IKEA US, Inc. v. u.s. Dept. of
Justice, 48 F. Supp. 2d22, 24 (D.D.C. 1999).
EAC 05 16353148
Page 7
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 dedision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. As explained above, the
beneficiary appears to be employed as a first-line supervisor and performs chiefly non-qualifying operational
tasks related to sales and promotions. Therefore, the petitioner has not established that the beneficiary will be
employed primarily in an executive capacity.
,
Although a company's size alone, without taking into account the reasonable n~eds of the organization, may
not be the determining factor in granting a visa to a multinational manager or executive (see § lOl(a)(44)(C)
of the Act), it is appropriate for CIS to consider the size of the petitioning company in conjunction with 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.
200 l). Regardless, the re~sonable needs of the petitioner serve only as a factor in evaluating the lack of staff
in the context of reviewing the claimed managerial or executive duties. The petitioner must still establish that
the beneficiary is to be employed in the United States in a primarily managerial or executive capacity,
pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established
this essential element of eligibility, and the petition may not be approved for that reason.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties.
The initial approval of an L-IA new office petition 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 U.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.