dismissed L-1A Case: Wood Wholesale

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u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington,DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
SRC 05 16951236
Petitioner:
Beneficia
Office: TEXAS SERVICE CENTER Date:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOl{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.
/1 .. /~. .,1 ~/'
·/~~
;&'obert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
SRC 05 169 51236
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily
dismissed.
The petitioner, a Texas corporation, claims to be an affiliate of Maderas de Pino, located in Mexico. The
petitioner states that the United States entity is engaged in the business of the wholesale and retail sale of
"types of woods." Accordingly, the United States entity petitioned Citizenship and Immigration Services
(CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA) pursuant to section
lOl(a)(15)(L) of the Act (the Act), 8 U.S.C. § 110l(a)(15)(L). 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 for a three-year period in order to continue to fill the position of vice
president/general manager.
The director denied the petition on August 6, 2005, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a managerial or executive capacity.
The petitioner subsequently filed an appeal on September 2, 2005. The director declined to treat the
appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-1290B Notice of
Appeal, counsel for the petitioner asserts the following:
The L-IA extension was incorrectly denied. The TSC assumed that because the U.S.
enterprise is small, the beneficiary could not perform executive or managerial duties.
The TSC ignored the detailed list of duties performed by beneficiary. The U.S. enterprise
has grown from the day of its creation to present. This is due to the beneficiary's
executive/managerial efforts both abroad and in the U.S.
Counsel indicated on Form 1-1290B that she would submit a brief and/or evidence to the AAO within 30
days. As no additional evidence has been incorporated into the record, the AAO contacted counsel by
facsimile on October 18, 2006 to request that counsel acknowledge whether the brief and/or evidence
were subsequently submitted, and, if applicable, to afford counsel an opportunity to re-submit the
documents. Counsel for the petitioner responded to the A.1\0 on October 20, 2006, indicating that no
brief or evidence was submitted in support of the appeal. Accordingly, the record will be considered
complete.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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.
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition.
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the
part of the director or providing new evidence to support that the beneficiary is in a position of managerial
or executive capacity, are simply insufficient to overcome the well-founded and logical conclusions the
SRC 05 169 51236
Page 3
director reached based on the evidence submitted by the petitioner. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 1& N Dec. 158, 165 (Comm. 1998)(citing Matter ofTreasure Craft ofCalifornia, 14
I&N Dec. 190 (Reg. Comm, 1972». Without documentary evidence to support the claim, the assertions
of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19
I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
On review, the petitioner 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 will work with the President to "manage the entire business," "to plan, develop,
establish company policies and objectives," and "to direct the expansion and growth of the business. The
petitioner did not, however, define the beneficiary's goals and policies, or explain how the beneficiary
and the company president would share these responsibilities. 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. SUPPa 1103, 1108
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
The job description also includes several non-qualifying duties such as the beneficiary will "meet with
suppliers and maintain relationships," "find additional wood sources for u.s. and Mexican companies,"
and "oversee the quality of material and purchases made for U.S. and foreign inventory." Since the U.S.
entity consists of the President and the beneficiary, it appears that the beneficiary will be providing most
of the services of the business rather then directing such activities through subordinate employees. An
employee who "primarily" performs the tasks necessary to produce a product or provide a service is not
considered to be "primarily" employed in a managerial or executive capacity. See sections lOl(a) (44)(A)
and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive
duties); see also Matter ofChurch Scientology International, 19 I & N Dec. at 604.
On appeal, counsel for the petitioner asserts that the diretor "ignored the detailed list of duties performed
by the beneficiary." While the AAO achowledges that the petitioner submitted a fairly lengthy position
description, the description was not detailed and did not present a credible account of the beneficiary's
actual duties as of the date the petition was filed. Further, the beneficiary's job description cannot be
considered in the abstract, rather CIS must determine based on a totality of the record whether the
beneficiary's stated U.s. duties represent a credible perspective of the beneficiary's role within the
organizational hierarchy. Here, the duties of the beneficiary overlapped with those of the president,
included supervision of employees who had not actually been hired, and included a number of non­
qualifying operational tasks. Upon review of the director's decision, it appears that the director gave
proper weight to the submitted job description and appropriately found it insufficient to establish the
beneficiary's eligibility for this classification.
In the response to the director's request for additional evidence, counsel for the petitioner asserted that the
beneficiary would manage an essential function of the U.S. entity. The term "function manager" applies
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is
SRC 05 16951236
Page 4
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 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(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 employed in a managerial or executive capacity. Boyang, Ltd. v.
INS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 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.. The petitioner did not establish that the
beneficiary will perform primarily managerial duties.
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the
business. The fact that the beneficiary has been given a managerial job title and shared general oversight
authority over the business with the petitioner's president, is insufficient to elevate his position to that ofa
"function manager" as contemplated by the governing statute and regulations.
Pursuant to section lOl(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take
into account the reasonable needs of the organization, in light of the overall purpose and stage of
development of the organization. In the present matter, however, the regulations provide strict
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the
organizational structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The
regulation at 8 C.F.R. § 214.2(1)(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 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 petitioner has
not reached the point that it can employ the beneficiary in a predominantly managerial or executive
position.
Further, there is no indication that the reasonable needs of the organization were not considered by the
director. On the contrary, it appears that the petitioner was unable, based on its overall purpose and stage
of development, to support a primarily managerial or executive position as defined by sections
101(a)(44)(A) and (B) of the Act.
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or
medium size businesses. However, the AAO has also long required the petitioner to establish that the
beneficiary's position consists of primarily managerial and executive duties and that the petitioner has
SRC 05 169 51236
Page 5
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is
the petitioner's obligation toestablish however, through independent documentary evidence that the day­
to-day non-managerial and non-executive tasks of the petitioning entity are performed by someone other
than the beneficiary, although, as correctly noted by counsel, these employees need not be professionals.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. For this reason,
the appeal will be dismissed.
Regulations at 8 C.F.R. § l03.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
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. Inasmuch as counsel has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not
sustained that burden. Therefore, the appeal will be summarily dismissed.
ORDER: The appeal is summarily dismissed.