dismissed L-1A Case: Woodworking

U.S. Department of Homeland Security
20 Mass achusetts Ave., N .W. Rm. 3000
Washington, DC 20529
identifyingdatadeletedto
prevent .clearly unwarranted \
invasionof personalpnvacy
PUBLIC COpy
FILE: SRC 06 130 53559 OFFICE: TEXAS SERVICE CENTER Date: nEC 2! 2001
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.
R~n~f
Administrative Appeals Office
www.useis.gov
SRC 06 130 53559
Page2
DISCUSSION: The Director , Texas Service Center , denied the nonimmigrant visa petition : The matter is
now before the Administrati ve Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-l A
nonimmigrant intracompany transferee pursuant to sect ion 101(a)(15)(L) of the Immigration and Nationality
Act (the Act) , 8 U.S .C. § 1101(a)(l5)(L) . The petitioner, a Florida corporation, states that it is engaged in
woodworking and carpentry . It claims to be a subsidiary 0 . located in the
United Kingdom. The beneficiary was initially granted a one-year period in L-l A classification in order to
open a new office in the United States, and the petitioner now seeks to extend the beneficiary's status for two
additional years .
. The director denied the petition concluding that the petitioner had not established that the beneficiary would
be employed by the U .S. entity in a managerial or executive capacity. I
The petitioner subsequently filed "an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO.On appeal , counsel for the petitioner emphasizes that the request for an
extension of the beneficiary's status was submitted four months prior to the expiration of his initial period of
stay in L-IA classification , and contends that the petitioner "had plans to engage US workers in the near
future and within the required period." Counsel asserts that the beneficiary 's spouse remains responsible for
non-m~nagerial responsibilities within the U.S. company. Counsel submits a brief in support of the appeal.
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 qual ifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within the three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her
.. services to the same employer or a subsidiary or affiliate 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 o rganization which employed or will employ the
alien are qualifying organizations as defined in paragraph (I)(I)(ii)(G) ofthis 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.
I The director initially denied the petition on July 25 , 2006 for abandonment , pursuant to 8 C .F.R. §
103.2(b)(l3 ). The director determined that the petitioner had not responded to a request for evidence , issued
on April 17, 2006, w ithin the required time 84-day time period. It was later determined that the petitioner's
response was timely submitted, but, due to USCIS error, it was not matched with the record of proceeding.
The director re-opened the matter pursuant to 8 C.F .R. § 103.5(a)(2) and, after reviewing the submitted
evidence, denied the petition on October 23, 2006.
SRC 06 130 53559
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(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.
The regulation at 8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined III
paragraph (l)(l)(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 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), provides:
The term "managerial capacity" means an assignment within an organization III 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;
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(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), provides:
The term "executive capacity" means an assignment within an organization m which the
employee primarily- -
(i) directs the management ofthe 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 nonimmigrant petition was filed on March 20 ,2006. The petitioner stated on Form 1-129 that it had one
employee as of the date of filing. On the L Classification Supplement to Form 1-129, the petitioner stated that
the beneficiary 's duties as president would include the following: "Development of Company. Overall
management and direct ion of the company , full executive powers for policy mak ing decisions, responsibility
for recruitment and training of staff."
In a letter dated March 17 , 2006, counsel for the petitioner stated that the beneficiary's duties to date were as
follows:
[The beneficiary] has been wholly instrumental in the progress that the company has made
within the US market. He has negotiated and secured contracts on behalf of the entity ,
devised and implemented successful market ing and advertising strategies and has generally
developed the company from one that had yet to trade into a credible ent ity that is currently
systematically conducting business.
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The director issued a request for evidence on April 17, 2006, in which she instructed the petitioner to submit:
(1) an organizational chart for the U.S. entity including a detailed job description for each employee ; (2) a
· copy of the U.S. entity's income tax returns ; (3) evidence of the U .S. petitioner's state quarterly wage reports
for the last four quarters; (4) copies of IRS Forms 941, Employer's Quarterly Federal Tax Return ; and (5) a
copy of the beneficiary's IRS Form W-2 for 2005.
In a response received on June 28, 2006, the petitioner provided the following position description for the
beneficiary:
Vice President/Managing Director
• Overall management of the business which includes' evolving marketing strategies and
making decisions as to the direction of the company
• Negotiating and finalising [sic] contracts
• Liaising with pertinent parties such as suppliers , financial institutions and subcontractors
• Designates joinery and carpentry projects to those subcontracted for these purposes . He
directs the contracts in their duties ensuring that operations are performed effectively an
[sic] safely . '
• Responsibility for the company's budget
• Reports to President of the company who is in the UK
The petitioner indicated that the beneficiary's spouse serves as the company's secretary and is responsible for
· the following duties:
• She performs the administrative projects within the company including the .invoicing,
filing and general paperwork
• Deals With queries in person and by telephone
• Administers sales
· The petitioner stated that the company utilizes the services of contractors to execute carpentry and joinery
projects, "but will be employing one full time carpenter at the beginning of August 2006 and a Joiner in
October 2006." With respect to the director's request for evidence of wages paid to employees, the petitioner
submitted a letter from its accountant , dated May 1, 2006 , who stated that the .company had not yet paid any
wages, but expected to begin paying W-2 wages to the beneficiary and his spouse in the second quarter of
2006.
As noted above, the director initially denied the petition due to abandonment on July 25, 2006 , but
subsequently re-opened the matter when it was discovered that a timely response to the request for evidence
had been submitted. The director ultimately denied the petition on October 23, 2006, concluding that the
petitioner had failed to establish that the beneficiary would be employed in a primarily managerial or
executive capacity under the extended petition . The director noted that the petitioner had not shown that it has
any employees and therefore the beneficiary would not have staff to relieve him from performing non­
managerial duties .
SRC 06 130 53559
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On appeal.counsel for the petitioner emphasizes that the beneficiary's initial period in L-lA classification was
due to expire on July 19 ,2006, more than four months after the petition was filed , and therefore the petitioner
was not required to submit evidence that it had hired employees at the time of filing. Counsel further notes
that at the time the petitioner responded to the director's request for evidence on June 28 , 2006, the petitioner
was still not required to show that it had hired staff, as the response was submitted nearly one month prior to
the exp iration of the initial period of L-1A status . Counsel therefore asserts "that the "rules were not
appropriately applied ," as the petitioner "categorically intended to engage staff in compliance with
immigration regulations , but has not been given a viable opportunity to do so as a consequence of the denial
of the petition." Counsel contends that the beneficiary's spouse "was and remains responsible for the non­
managerial responsibilities within the petitioning company." Counsel further asserts that the petitioner was
given neither adequate time nor opportunity to employ staff, and highlights errors on the part of USCIS in the
processing ofthe case, particularly, the error that led to the denial for abandonment in July 2006.
Upon review of the record and for reasons discussed herein, the petitioner has not established that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition .
The errors made in processing the case , while regrettable , do not exempt the petitioner from having to meet
the statutory and regulatory requirements for this visa classification. The lack of staff at the end of the first
year of operations is only one factor in determining the beneficiary's eligibility for an extension of his L-1A
status. Counsel does riot specifically address the substantive issue of whether the petitioner established that
the beneficiary was performing managerial or executive duties at the end of the first year of operations.
When examining the executive or managerial capac ity 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 petit ioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
in either an executive or a managerial capacity. Id.
The definitions of executive and managerial capacity have two separate requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions .
Second, the petitioner must show that the beneficiary primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World , Inc.v. INS, 940 F.2d
1533 (Table), 1991 WL 144470 (9
th
Cir. July 30, 1991). In the instant matter , the petitioner has failed to show
that non-qualifying duties will not constitute the majority of the beneficiary 's time.
The petitioner initially provided a vague and nonspecific description of the beneficiary 's duties that failed to
demonstrate that he would be employed in a primarily managerial or executi ve capacity. The petitioner's
statements that the beneficiary is responsible for "development of company," "overall management and
direction," "full executive powers for policy making decisions ," and devising marketing and advertising
strategies suggest that the beneficiary exercises discretionary authority over the business; however , the
petitioner failed to explain what specific managerial or executive duties the beneficiary performs on a day-to­
day basis . The regulations require a detailed description 'of the duties the beneficiary performed during the
first year of operations and the duties he will perform if the petition is extended. See 8 C.F .R.§
214.2(l)(l4)(ii)(C). 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
SRC 06 130 53559
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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. 1103, 1108 (E.D .N.Y. 1989), affd , 905 F.2d 41 (2d . Cir. 1990).
Furthermore , the petitioner's response to the director's request for a detailed position description did little to
convey an understanding of what the beneficiary's primary duties would be under the extended petition. For
example, the beneficiary's responsibility for "liaising with pertinent parties such as suppliers, financial
institutions," cannot be considered to be managerial or executive in nature. Without further explanation, these
duties may involve nothing more than purchasing materials from suppliers and day-to-day banking. The
petitioner further indicates that the beneficiary liaises with sub-contractors, designates joinery and carpentry
projects to subcontractors, and directs the contractors in their duties. However , despite repeated references in
the record to subcontractors, the petitioner has not provided any documentary evidence of their existence, nor
has it identified the contractors utilized, or the nature and scope of the services they provide. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
.these proceedings. Matter ofSoffici, 22 I&N Dec . 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972».
Furthermore, even if the petitioner had submitted documentary evidence . to corroborate its use of contract
employees, the petitioner's statement that the beneficiary is responsible for negotiating and finalizing
contracts suggests that he is primarily responsible for marketing and selling the petitioner's services to clients
and designing the customers' carpentry projects . 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 Int'l ., 19 I&N Dec . 593,
604 (Comm. 1988). In addition, the 'beneficiary's responsibility for directly overseeing the carpentry . and
joinery work performed by the claimed contractors cannot be considered managerial in nature pursuant to the
statutory definition. Contrary to the common understanding of the word "manager," the statute plainly states
that 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)(A)(iv)
of the Act; 8 C.F.R. § 214.2(1)(l)(ii)(B)(2).
Whether the beneficiary is a managerial or executi ve employee turns on whether the petitioner has sustained
its burden of proving that his duties are "primarily" managerial or executive . See sections 101(a)(44)(A) and
(B) of the Act. 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 , administrative and 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 that the beneficiary is primarily performing duties in a
managerial or executive capacity. See, e.g., IKEA US, Inc . v. Us. Dept. of Justic e, 48 F . Supp. 2d 22 , 24
(D.D.C. 1999).
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
.. .
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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 beneficiary's actual role in a
business. Pursuant to section 101(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, USCIS 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 USCIS 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(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 USCIS 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 operationaland administrative tasks, the petitioner is ineligible by
regulation .for an extension.
At the time of filing, the petitioner was a one-year-old company engaged in providing carpentry and
woodworking services. Although not acknowledged by the petitioner , evidence in the record shows that the
petitioner is also engaged in the sale of pet accessories . The petitioner employs the beneficiary as president
and claims that the beneficiary's spouse serves as the company's secretary , responsible for customer inquiries,
administrative tasks, and administering sales. The petitioner's accountant implied that the beneficiary and his
spouse would begin receiving wages during the second quarter of 2006; however, USCIS records show that
the beneficiary's spouse has not applied for an employment authorization document that would allow her to
work while in L-2 status. Furthermore, as discussed above, the petitioner has not provided evidence pertaining
to its claimed sub-contractors , such as their names , the duties they perform , they number of hours they work,
or documentation showing payments to these workers .
The AAO acknowledges that the director did not specifically request evidence of payments made to contract
workers, but the request for evidence clearly conveyed the petitioner's need to document evidence of wages
paid to its workers . If the petitioner claims that contractors provided the majority of its services, it was
reasonable to expect the petitioner to provide evidence of payments to such workers. Furthermore , the
petitioner failed to provide a 'copy of its 200 '5 corporate tax return, which was specifically requested by the
director , and which would have included information regarding payments made to contractors. Failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8
C.F.R. § 103 .2(b)(14) . Although counsel insists on appeal that the petitioner had every intention of hiring
employees before the end of the first year of operations , the petitioner specifically stated that it intended to
hire one carpenter in August 2006 , and one joiner in October 2006. The initial L-l petition expired on July 19,
2006, so these workers would not have been hired within the one-year timeframe.
Therefore , the records shows that the beneficiary was the only full-time employee of the company as of the
end of the first year of operations, and he appears to have been primarily responsible for marketing and selling
the petitioner's services to customers, as well as purchasing materials. Even if the petitioner had hired a full':'
time carpenter and joiner prior to the end of the first year of operations , there is no evidence that such
employees would have relieved the beneficiary from performing these non-qualifying duties . Although the '
petitioner indicated that the beneficiary's spouse "administers sales," her claimed duties have not been
described in 'detail and the petitioner has not 'adequately supported its claim that she performs all non-
'.
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managerial duties of the company. Again , going on record without supporting documentary evidence is not
sufficient for purposes ofmeeting the burden of proof in these proceedings. Matter ofSofJici, 22 I&N Dec. at
165. Based on the invoices submitted, the beneficiary's spouse appears to be involved in the sale of pet
accessories. Finally , the lack of evidence regarding sub-contracted employees raises questions as to whether
the beneficiary was relieved from directly providing the petitioner's services . A review of the totality of the
record fails to establish that the petitioner has a reasonable need for the beneficiary to perform primarily
managerial or executive duties at its current stage of development.
Regardless, the reasonable 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.
The AAO does not dispute that .small companies require leaders or individuals who plan , formulate, direct ,
manage, oversee and coordinate activities; however the petitioner in this matter has not indicated that the
beneficiary wouldspend a substantial amount of time performing duties at the managerial or executive level.
The petitioner must establish with specificity that the beneficiary 's duties comprise primarily managerial or
executive responsibilities and not routine operational or administrative tasks . The fact that the beneficiary
manages a business , regardless of its size , does not necessarily establish eligibility for classification as an
intracompany transferee in an executive capacity within the meaning of section 101(a)(15)(L) ofthe Act. See
52 Fed. Reg. 5738 , 5739 (Feb. 26 , 1987). Here , the record fails to establish that the majority of the
beneficiary 's duties under the extended petition would be primarily directing the management of the
organization or a component or function of the organization .
As stated above, the regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States 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. Even though the enterprise is
in a preliminary stage of organizational development, the petitioner is not relieved from meeting the statutory
requirements. In the instant matter, the petitioner has not reached the point that it can employ the benefic iary
in a predominantly managerial or executive position. For this reason, 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 .